PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1537

TOWN OF NAGS HEAD,

Plaintiff – Appellee,

v.

MATTHEW A. TOLOCZKO; LYNN B. TOLOCZKO,

Defendants – Appellants.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Elizabeth City. James C. Dever 

III, Chief District Judge. (2:11-cv-00001-D)

Argued: May 17, 2013 Decided: August 27, 2013

Before SHEDD, DAVIS, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion. Judge Diaz wrote 

the opinion, in which Judge Shedd and Judge Davis joined.

ARGUED: J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento, 

California, for Appellants. Charles Everett Thompson, II, 

THOMPSON & PUREZA, Elizabeth City, North Carolina, for Appellee. 

ON BRIEF: William J. Brian, Jr., Keith P. Anthony, MORNINGSTAR 

LAW GROUP, Morrisville, North Carolina, for Appellants. David 

R. Pureza, THOMPSON & PUREZA, P.A., Elizabeth City, North 

Carolina, for Appellee.
2

DIAZ, Circuit Judge:

We heard argument in this case in concert with the related 

appeal of Sansotta v. Town of Nags Head, ___ F.3d ___, No. 12-

1538, 2013 WL 3827471 (4th Cir. 2013). Both suits involve a 

slew of federal and state law claims concerning the legality of 

efforts by the Town of Nags Head, North Carolina (the “Town”),

to declare beachfront properties that encroach onto “public 

trust lands” a nuisance, and regulate them accordingly. The 

district court adjudicated the claims in Sansotta, but concluded 

here that it was inappropriate for a “federal court to intervene 

in such delicate state-law matters,” Town of Nags Head v. 

Toloczko, 863 F. Supp. 2d 516, 519 (E.D.N.C. 2012), and 

therefore abstained from decision under Burford v. Sun Oil Co., 

319 U.S. 315 (1943). 

Mindful that the abnegation of federal jurisdiction is a 

serious measure to be taken only under “extraordinary and 

narrow” circumstances, Martin v. Stewart, 499 F.3d 360, 370 (4th 

Cir. 2007), we conclude that the circumstances of this case do 

not merit abstention. While the claims asserted here do involve 

a sensitive area of North Carolina public policy, resolving them 

is not sufficiently difficult or disruptive of that policy to 

free the district court from its “unflagging obligation to 

exercise its jurisdiction.” In re Mercury Constr. Corp., 656 

F.2d 933, 943 (4th Cir. 1981) (en banc) (internal quotation 
3

marks omitted). We therefore reverse the district court’s 

decision to abstain, and remand for further proceedings.

I.

The Town of Nags Head is a coastal municipality that has 

the Atlantic Ocean as its eastern boundary. Its beaches have 

historically been used by the public for transportation and 

recreational activities. These activities enjoy legal 

protection under the “public trust doctrine,” which entitles 

states like North Carolina to appropriate title to tidal lands 

in trust for the public. See Gwathmey v. State Through Dep’t of 

Env’t, Health, & Natural Res., 464 S.E.2d 674, 677 (N.C. 1995).

Various natural indicators can demarcate public trust lands 

from private property. Although the vagaries of beach 

topography make it difficult to delineate a fixed boundary, the 

Town and North Carolina both define the relevant area as 

“seaward of the mean high water mark.”1

 Town of Nags Head, N.C., 

Code of Ordinances, § 48-7; see also N.C. Gen. Stat. § 77-20(e). 

Historically, prevailing environmental conditions have

pushed the high tide line westward from the Atlantic Ocean, 

resulting in erosion and the gradual migration of private 

 1 The mean high water mark is the average of all high tide 

elevations measured over a nineteen-year period. 
4

beachfront property into public trust lands. To combat this 

trend, beachfront owners like Matthew and Lynn Toloczko2 have 

periodically restored displaced sand and have raised the height 

of their cottages by sixteen feet to endure tidal surges. In 

the event of storm damage, the Toloczkos obtained permits from 

the Town to make all necessary repairs. 

A few years ago, however, the Town determined that certain 

beachfront properties were beyond rehabilitation because they 

were located within public trust lands. The Town therefore

resolved to demolish these structures through enforcement of its 

Nuisance Ordinance, which regulates “[a]ny structure, regardless 

of condition . . . located in whole or in part in a public trust 

area or public land.” Town of Nags Head, N.C., Code of 

Ordinances, § 16-31(6)(c). 

When a tropical storm inflicted serious damage on the

Toloczkos’ cottage in November 2009, the Town condemned the 

structure and sent the Toloczkos a “Declaration of Nuisance.” 

The Town refused to allow the Toloczkos to abate any nuisance by 

acquiring a permit to make repairs. The Town also began to 

assess daily fines to compel the Toloczkos to demolish the 

structure. 

 2 The Toloczkos have owned a beachfront cottage in the Town

since 1992. 
5

The Toloczkos refused to raze their cottage, and the Town 

sued them in North Carolina state court, seeking to collect the 

assessed civil fines and demolish the cottage. The Toloczkos 

removed the case to federal court based on diversity of 

citizenship. 

After removal, the Toloczkos filed twenty-one counterclaims 

alleging violations of state and federal law. The bulk of the 

counterclaims sought related, if not duplicative, declaratory 

judgments that the Town acted unlawfully by enforcing the public 

trust doctrine through its Nuisance Ordinance. The Toloczkos 

also sought injunctive relief and money damages for violations 

of state and federal law. 

During the course of the litigation, the Town amended its 

Zoning Ordinance to prohibit any structure if located: “(1) 

Wholly within the wet sand area of the public trust beach area, 

i.e. on the state owned property seaward of the mean high water 

mark;” or “(2) Wholly or partially within any portion of the 

public trust beach area in such a manner that the building or 

structure impedes the flow of vehicular, pedestrian, or 

emergency services traffic at normal high tide.” Town of Nags 

Head, N.C., Code of Ordinances § 48-87. The amended ordinance 

also forbids the issuance of building and repair permits for 

structures located on public trust lands. 
6

In the meantime, a North Carolina beach replenishment 

initiative added substantial sand seaward of the cottage, 

prompting the Town to inform the Toloczkos that it no longer 

considered their cottage a nuisance. The Town subsequently 

offered the Toloczkos the opportunity to procure new permits to 

repair the cottage.3 To repair the cottage, however, the 

Toloczkos needed to petition the North Carolina Department of 

Environment and Natural Resources (CAMA) for approval to obtain 

a local permit to replace their damaged septic tanks. CAMA 

denied the permit due to the cottage’s location within an “Area 

of Environmental Concern” and “comments from the Town of Nags 

Head indicating that the proposal has been deemed to be 

currently inconsistent with the Code of Ordinances of the Town 

of Nags Head.” J.A. 391. Accordingly, the parties continued 

the litigation. 

 3 We do not think this affects our jurisdiction, as 

“voluntary cessation of a challenged practice” moots an action 

only if “subsequent events made it absolutely clear that the 

allegedly wrongful behavior could not reasonably be expected to 

recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 

Inc., 528 U.S. 167, 189 (2000). Here, the Town maintains that 

the cottage resides in the public trust area, and Town Manager 

Cliff Ogburn conveyed that he “could . . . still declare--

redeclare [the Toloczkos’] cottage to be a nuisance.” J.A. 180-

81. Under these conditions it is not clear--certainly not 

“absolutely”--that the asserted injury will not recur. In fact, 

given Ogburn’s statements, and the fluctuating terrain of the 

beachfront, “there is a reasonable expectation that the 

[Toloczkos] will be subject to the same action again.” Spencer 

v. Kemna, 523 U.S. 1, 17 (1998). 
7

The district court, however, declined to decide the case. 

Invoking the Burford doctrine of abstention, the court noted 

“the danger of federal interference with unsettled, important 

policy matters reserved to the states,” and determined that 

“land use is an important public policy that lies within the 

prerogative of a sovereign state.” Toloczko, 863 F. Supp. 2d at 

525. Because the dispute involved “profound, unresolved statelaw issues that transcend the case at hand,” id. at 529, the 

court exercised its discretion to decline federal jurisdiction.4 

This appeal followed.

 4 Where--as here--claims for discretionary relief are 

removed to federal court and a district court decides to 

abstain, the court should “remand” rather than “dismiss” the 

claims. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731 

(1996). Similarly, federal courts may only abstain from claims 

for discretionary relief, i.e., declaratory and equitable 

actions, while claims for damages may be stayed but not 

dismissed or remanded. See id. at 730. Here, the district 

court stayed the Toloczkos’ 42 U.S.C. § 1983 claim (counterclaim 

sixteen), inverse condemnation claim (counterclaim nineteen), 

slander of title claim (counterclaim twenty), and negligence 

claim (counterclaim twenty-one). Additionally, the court 

dismissed the Toloczkos’ regulatory takings claim (counterclaim 

eighteen) on ripeness grounds. The Toloczkos raise no argument 

in their opening brief as to their state law claims for slander 

of title and negligence, and therefore have waived appellate 

review of the district court’s decision to stay those claims.

As for the Town’s claims in the complaint, the district 

court concluded that the Town’s withdrawal of the Nuisance 

Declaration mooted the state law abatement actions (counts I and 

II). The district court also stayed the claim to collect the 

civil fines (count III). 
8

II.

A.

We review a district court’s decision to abstain for abuse 

of discretion, “ever mindful that, although the standard is a 

deferential one, the discretion to abstain is tempered by the 

truism that ‘the federal courts have a virtually unflagging 

obligation to exercise their jurisdiction.’” MLC Auto., LLC v. 

Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008) (internal 

quotations omitted). 

The Burford abstention doctrine relaxes the otherwise 

“unflagging” mandate of Article III when an adjudication may 

undermine the “independence of state action” on issues that are 

local and important to a state’s sovereignty. Quackenbush, 517 

U.S. at 728. In this way, the doctrine advances federal and 

state comity by permitting courts to abstain where “an incorrect 

federal decision might embarrass or disrupt significant state 

policies.” Nature Conservancy v. Machipongo Club, Inc., 579 

F.2d 873, 875 (4th Cir. 1978) (per curiam).

Burford involved a Fourteenth Amendment challenge to the 

Texas Railroad Commission’s grant of an oil-drilling permit. 

Because Texas had devised an intricate regime of judicial review 

that fostered “a specialized knowledge” in a complex and “everchanging” area of the law, the Supreme Court concluded that 

federal interference would wreak “[d]elay, misunderstanding of 
9

local law, and needless federal conflict with the State policy.” 

Burford, 319 U.S. at 327. “Under such circumstances,” the Court 

held, “a sound respect for the independence of state action 

requires the federal equity court to stay its hand.” Id. at 

334. 

The Supreme Court has since “carefully defined the areas in 

which such abstention is permissible,” Martin, 499 F.3d at 363, 

specifying two contexts in which the Burford doctrine applies:

(1) [W]hen there are difficult questions of state law 

bearing on policy problems of substantial public 

import whose importance transcends the result in the 

case then at bar; or (2) 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 a matter of 

substantial public concern. 

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans

(NOPSI), 491 U.S. 350, 361 (1989) (internal quotations omitted). 

B.

We first consider whether the district court correctly 

abstained from resolving the claims for declaratory relief 

(counterclaims one through fifteen, and seventeen) asserted by 

the Toloczkos. The gravamen of these counterclaims concerns the 

Town’s authority to ratify and enforce an ordinance that 

regulates structures on public trust lands. We have 

traditionally viewed questions of state and local land use and 

zoning law as the paradigm of Burford abstention, calling them
10

“a classic example of situations in which the exercise of 

federal review . . . would be disruptive of state efforts to 

establish a coherent policy with respect to a matter of 

substantial public concern.” Pomponio v. Fauquier Cnty. Bd. of 

Supervisors, 21 F.3d 1319, 1327 (4th Cir. 1994) (en banc) 

(internal quotations omitted), abrogated in part on other 

grounds by Quackenbush, 517 U.S. at 728-31. “While zoning and 

land use cases do not automatically warrant Burford abstention,” 

Wash. Gas Light Co. v. Prince George’s Cnty. Council, 711 F.3d 

412, 419 (4th Cir. 2013), our precedent demonstrates that these

cases characteristically meet the Burford abstention criteria.5 

The instant case would seem to fit the trend, as the litany 

of state and federal law counterclaims lodged by the Toloczkos 

appear to invite a federal court to decide (1) the legal 

authority of the Town to enforce North Carolina’s public trust 

 5 See id. (Maryland “mandatory referral statute” governing 

public utilities compliance with municipal zoning laws); MLC 

Auto., 532 F.3d at 283 (claim that town rezoning violated vested 

rights and constitutional due process); Pomponio, 21 F.3d at 

1320-21 (challenge to application of local zoning ordinance); 

Palumbo v. Waste Tech. Indus., 989 F.2d 156, 159-60 (4th Cir. 

1993) (challenge to local waste management permitting scheme); 

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

Royal, 945 F.2d 760, 763-64 (4th Cir. 1991) (annexation and 

sewer services); Browning-Ferris, Inc. v. Balt. Cnty., 774 F.2d 

77, 79 (4th Cir. 1985) (complex state regulations governing 

landfill operations); Caleb Stowe Assocs., Ltd. v. Cnty. of 

Albemarle, Va., 724 F.2d 1079, 1080 (4th Cir. 1984) (challenge 

to “authority of local planning bodies and Boards of 

Supervisors”). 
11

doctrine through its Nuisance Ordinance, and (2) whether the 

Toloczkos’ cottage is subject to that ordinance. Both questions 

risk an “interference with the State’s or locality’s land use 

policy,” Pomponio, 21 F.3d at 1328, which might “disrupt the 

State’s attempt to ensure uniformity in the treatment of an 

essentially local problem,” NOPSI, 491 U.S. at 362 (internal 

quotations omitted). This is especially true for the claims 

that request a determination that the cottage is not located in 

the public trust area,6 as it would obviously offend federalism 

and comity for a federal court to physically delimit the metes 

and bounds of a state’s sovereign lands. See Idaho v. Coeur 

d’Alene Tribe of Idaho, 521 U.S. 261, 283 (1997) (“State 

ownership of [submerged lands] has been considered an essential 

attribute of sovereignty.”). 

If this were the end of the matter, we would not hesitate 

to affirm the district court’s abstention under Burford. But 

 6 In this task, a court would have no guidance. The scope 

of the public trust common law doctrine remains the exclusive 

province of the North Carolina courts to define, see N.C. Gen. 

Stat. § 77-20(d) (“These public trust rights in the ocean 

beaches are established in the common law as interpreted and 

applied by the courts of this State.”), and they have 

consistently declined the opportunity to do so in the context of 

beachfront property. See Cooper v. United States, 779 F. Supp. 

833, 835 (E.D.N.C. 1991) (“The extent to which the public trust 

doctrine applies to dry sand property in North Carolina is an 

unsettled question.”); Concerned Citizens of Brunswick Cnty.

Taxpayers Ass’n v. State ex rel. Rhodes, 404 S.E.2d 677, 688 

(N.C. 1991). 
12

here the district court is not required to sail into these 

uncharted waters because North Carolina law is clear that the 

Town has no authority to enforce the public trust doctrine in 

the first place. See Town of Nags Head v. Cherry, Inc., 723 

S.E.2d 156, 161 (N.C. Ct. App.), disc. review denied, 733 S.E.2d 

85, 85-86 (N.C. 2012); Fabrikant v. Currituck Cnty., 621 S.E.2d 

19, 27 (N.C. Ct. App. 2005); Neuse River Found., Inc. v. 

Smithfield Foods, Inc., 574 S.E.2d 48, 54 (N.C. Ct. App. 2002), 

disc. review denied, 577 S.E.2d 628 (N.C. 2003). 

In Cherry, a case nearly identical to ours, the Town filed 

a state court abatement action claiming that a physical 

structure occupied public trust lands, and therefore was subject 

to its Nuisance Ordinance. 723 S.E.2d at 157-59. The Court of 

Appeals of North Carolina dismissed the suit for lack of 

standing, holding that “only the State, acting through the 

Attorney General, has standing to bring an action to enforce the 

State’s public trust rights.” Id. at 161. 

In light of this clear statement of North Carolina law, the 

instant counterclaims neither present “difficult questions of 

state law” regarding North Carolina public trust lands nor 

“disrupt[] . . . state efforts to establish a coherent policy 

with respect” to this important policy. NOPSI, 491 U.S. at 361. 

As to the first point, the Town’s lack of standing to enforce 

the public trust doctrine obviates any difficult state law 
13

questions. The district court recognized this principle, but

stated that the “issue was far from settled” and that it was

“not prepared to say whether the North Carolina Court of Appeals 

accurately has predicted how the Supreme Court of North Carolina 

would (or will) rule on the issues in controversy in Cherry.” 

Toloczko, 863 F. Supp. 2d at 528 n.6.

At this juncture, however, we are prepared to make such a 

statement given that the Supreme Court of North Carolina 

declined discretionary review during the pendency of this 

appeal, see Cherry, 733 S.E.2d at 85-86, as it did the first 

time it had the opportunity to decide which entities have legal 

standing to press public trust rights, see Neuse River, 577 

S.E.2d at 628. 

Because “North Carolina currently has no mechanism for us 

to certify questions of state law to its Supreme Court,” MLC 

Auto., 532 F.3d at 284, we (and the district court) must “follow 

the decision of an intermediate state appellate court unless 

there is ‘persuasive data’ that the highest court would decide 

differently.” United States v. Little, 52 F.3d 495, 498 (4th 

Cir. 1995) (internal quotations omitted). Given the Supreme 

Court of North Carolina’s decision not to review Cherry, the 

district court no longer has cause to abstain over the 

counterclaims that depend on the Town’s authority to enforce 

section 16-31(6)(c) of the Nuisance Ordinance. 
14

Nor would deciding this case in federal court disrupt 

“state efforts to establish a coherent policy with respect to a 

matter of substantial public concern.” NOPSI, 491 U.S. at 361. 

Here it is the Town, not the federal courts, that has interfered 

with North Carolina’s governance of public trust lands. In 

fact, as Cherry explained, “it is entirely reasonable to grant 

[the] power [to enforce the public trust doctrine] to the State 

only, in order to minimize conflicts between municipalities or 

other local governments and the state agencies which have been 

granted the responsibility of managing and protecting public 

trust rights.” Cherry, 723 S.E.2d at 161 (internal quotations 

omitted). Because North Carolina law already bars the Town from 

enforcing its Nuisance Ordinance on the facts before us, no 

principle of abstention should preclude a federal court from 

saying so.

We will not call the district court’s decision an abuse of 

discretion because the controlling state law, which had not been 

established at the time of the abstention, “is now clear and 

certain.” Martin, 499 F.3d at 366. It suffices to say that 

because the balance of federal and state interests has changed 

with intermediate developments in state court precedent, 

“continued abstention at this point would be inappropriate.” 

Front Royal, 135 F.3d at 283.
15

C.

We next address whether the district court properly 

abstained from deciding the Toloczkos’ claim under 42 U.S.C. 

§ 1983 alleging due process and equal protection violations 

(counterclaim sixteen). We conclude that the district court 

need not abstain. While this constitutional claim intersects

with the Town’s land use and zoning laws, it is not merely 

“state law in federal law clothing.” Johnson v. Collins Entm’t 

Co., 199 F.3d 710, 721 (4th Cir. 1999). We also agree with the 

Toloczkos that a court need not define the geographical reach of 

the public trust doctrine to resolve their constitutional claim. 

In fact, the district court decided an analogous claim in 

Sansotta without offense to North Carolina’s land use or zoning 

law. We are confident the court can do the same here. 

III.

Finally, we review the district court’s dismissal of the

Toloczkos’ regulatory takings claim and its decision to stay the

inverse condemnation claim (counterclaims eighteen and 

nineteen). The Toloczkos allege here that the Town stripped 

their property of all viable economic use by declaring their 

cottage a nuisance and forbidding the issuance of any permits to 

repair the structure. 
16

The Fifth Amendment forbids the taking of private property

“for public use, without just compensation.” U.S. Const. amend. 

V. The Takings Clause applies to the states, see Chicago, B & 

Q.R. Co. v. Chicago, 166 U.S. 226 (1897), and to takings in the 

form of government regulations that effectively deprive a 

property of all economic value, see Henry v. Jefferson Cnty. 

Comm’n, 637 F.3d 269, 276 (4th Cir. 2011). “It is also clear 

that temporary, but total, regulatory takings are compensable.” 

Front Royal, 135 F.3d at 285. 

However, where “a State provides an adequate procedure for 

seeking just compensation, the property owner cannot claim a 

violation of the Just Compensation Clause until it has used the 

procedure and been denied just compensation.” Williamson Cnty.

Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 

172, 195 (1985). The district court dismissed the regulatory 

takings claim as unripe under this state-litigation requirement, 

as the Toloczkos failed to obtain an inverse condemnation 

adjudication--the relevant state law remedy--in state court 

before removal to federal court. 

The Williamson County ripeness doctrine “does not preclude 

state courts from hearing simultaneously a plaintiff’s request 

for compensation under state law and a claim that, in the 

alternative, the denial of compensation would violate the Fifth 

Amendment of the Federal Constitution.” San Remo Hotel, L.P. v. 
17

City & Cnty. of S.F., Cal., 545 U.S. 323, 346 (2005). But to 

satisfy Williamson County, plaintiffs must not only file a state 

law inverse condemnation claim--they must also be “denied just 

compensation” through a final adjudication in state court. 473 

U.S. at 195. 

In this case, the Toloczkos removed their regulatory 

takings claim to federal court before a North Carolina court 

could grant or deny a correlative state-law remedy. Unlike in 

Sansotta, ___ F.3d ___, slip op. at 21, where we held that the 

Town waived the state-litigation requirement by removing the 

case to federal court, here the Toloczkos preempted their own

state law remedy. Where a plaintiff’s failure to satisfy 

Williamson County results from their own litigation strategy, 

rather than the defendant’s “procedural gamesmanship” or forum 

manipulation, id. at 29, Sansotta’s waiver principle does not 

apply. 

But “[b]ecause Williamson County is a prudential rather 

than a jurisdictional rule, we may determine that in some 

instances, the rule should not apply and we still have the power 

to decide the case.” Id. at 24. Exercise of such discretion may 

be particularly appropriate to avoid “piecemeal litigation or 

otherwise unfair procedures.” San Remo Hotel, 545 U.S. at 346 

(internal quotations omitted). 
18

This is a proper case to exercise our discretion to suspend 

the state-litigation requirement of Williamson County. In the 

interests of fairness and judicial economy, we will not impose

further rounds of litigation on the Toloczkos. We therefore 

remand both the federal and state law takings claim to the 

district court. 

IV.

For the foregoing reasons, we reverse the district court’s 

decision to abstain and remand for further proceedings 

consistent with this opinion. 

REVERSED AND REMANDED