MEMORANDUM OF DECISION AND ORDER
The Court issued an order sua sponte requesting the partiesto file written memoranda regarding the Court's jurisdiction overthe subject matter of this case. The Plaintiffs, Madelyn andGeorge Huffmire, ("the Huffmires") in this action assert that theCourt has both diversity and federal question jurisdiction. TheDefendants (referred to collectively as "Boothbay") disagree thatthe Court has either diversity or federal question jurisdiction.In addition, Boothbay asserts that even if the Court hasjurisdiction over the subject matter, the Court shouldnevertheless dismiss or stay the action because an identicalstate-court action is currently pending between these parties.
The Huffmires are retired professors from the University ofConnecticut who live in the state of Connecticut. AmendedComplaint ¶ 1 (Docket No. 13). The couple are also artists and,in 1984, they purchased a shore front home on Shore Road inBoothbay Harbor, Maine in which they planned to live upon theirretirement. Id. ¶¶ 1, 2, 3. This property is located in theShoreland Protection District pursuant to Boothbay's Zoning andBuilding Code Ordinance. Defendant's Answer to Amended Complaint¶ 3 (Docket No. 16). On May 28, 1997, the Huffmires applied for aHome Occupation Permit ("the Permit") that would permit them todisplay their artwork for sale in an enclosed porch at theirBoothbay home. Amended Complaint ¶ 4. The Huffmires' applicationwas denied by the Planning Board for the town of Boothbay on June19, 1997. Amended Complaint ¶ 5; Defendants' Answer to AmendedComplaint ¶ 5.
The Huffmires, represented by counsel, reapplied for a Permiton March 5, 1998. Amended Complaint ¶ 6. The application wasdisapproved a second time on April 21, 1998, by the PlanningBoard. Amended Complaint ¶ 8. The Huffmires appealed andsubmitted additional information to the Board of Appealsincluding a study performed by a traffic safety engineer thatallegedly demonstrated that backing out onto Shore Road from theHuffmires' residence would not create a safety hazard. AmendedComplaint ¶¶ 9, 11. The Board of Appeals upheld the PlanningBoard's decision to deny the Huffmires' Permit application.Amended Complaint ¶ 9. The Huffmires allege that they were notpermitted to cross-examine persons who testified at the hearing,that the members of the Board of Appeals had a conflict ofinterest, and that the members of the Board of Appeals heldexecutive sessions from which the public was excluded inviolation of Maine law. Amended Complaint ¶ 17. The Huffmiresfiled identical lawsuits against Boothbay in state superior courtand this Court on July 17, 1998. The Complaint (Docket No. 1);Defendants' Response to this Court's Order Regarding SubjectMatter Jurisdiction ("Defendants' Response"), Exhibit 1, StateCourt Complaint (Docket No. 18).
A. Subject Matter Jurisdiction.
The threshold issue is whether the Court has jurisdiction overthe subject matter of this case. The Huffmires assert that thisCourt has diversity jurisdiction under 28 U.S.C. § 1332 andfederal question jurisdiction under 28 U.S.C. § 1331. Boothbaydisagrees. The Court agrees with the Huffmiresthat it has subject matter jurisdiction pursuant to28 U.S.C. § 1332. Pursuant to diversity jurisdiction, a federal court hasjurisdiction over all civil actions where the matter incontroversy exceeds the sum or value of $75,000, exclusive ofinterest and costs, and is between citizens of differentstates.1 See 28 U.S.C. § 1332. Boothbay contends that thematter in controversy does not exceed $75,000 as required by thestatute.
In St. Paul Mercury Indem. Co., the Supreme Court establishedthe standard for determining whether the requisite jurisdictionalamount has been properly alleged:
[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show any bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed . . . the suit will be dismissed.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289,58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). If the object of thelitigation is to be free of certain regulation, the amount incontroversy for purposes of diversity jurisdiction is the lossthat would follow enforcement of that regulation. See McNutt v.Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 181, 56S.Ct. 780, 781, 80 L.Ed. 1135 (1936). Here, enforcement of theBoard's2 decision to deny the Huffmires' Permit applicationresults in the loss of their ability to display and sell theirartwork in their home. The amount in controversy is, thus, thevalue of the right to use their home to display and sell theirartwork and any other consequential losses as a result of thedenial of the Permit application.
In their Amended Complaint, the Huffmires allege that "theamount in controversy exceeds the jurisdictional threshold."Amended Complaint ¶ 18. From the face of the Amended Complaint,however, it appears to a legal certainty that the value of theright to display and sell their artwork did not exceed $75,000.Accordingly, the Court ordered the parties to address the issueof jurisdiction ("the Order") (Docket No. 14).
Upon a challenge that the amount in controversy does not meetthe statutory minimum, a plaintiff has the "burden of allegingwith sufficient particularity facts indicating that it is not alegal certainty that the claim involves less than thejurisdictional amount." Dep't of Recreation and Sports of PuertoRico v. World Boxing Ass'n., 942 F.2d 84, 88 (1st Cir. 1991);see also Hardemon v. City of Boston, 144 F.3d 24, 26-27 (1stCir. 1998). A plaintiff may meet this burden by amending thepleadings or by submitting sworn affidavits. Dep't of Recreationand Sports of Puerto Rico, 942 F.2d at 88. In their initialresponse to the Court's Order, the Huffmires alleged in theirunsworn memorandum that, "the amount in controversy exceeds$75,000 based on rental of equal space annually in the town ofBoothbay Harbor over the lifetimes of the plaintiffs and theirheirs, who also have artistic training and will eventually residein the home." Plaintiffs' Response to Order Regarding SubjectMatter Jurisdiction ("Plaintiffs' Response") at 4. This isclearly not sufficient on its own to show that it is not a legalcertainty that the value of the right to display and sell theirartwork does not exceed $75,000. The price of rental space inBoothbay is not supplied nor substantiated, leaving the Courtunable to determine whether the amount in controversy will not bemet to a legal certainty.
In their reply to Boothbay's response to their initialmemoranda, the Huffmires further explain that the amount incontroversy is the cost of an alternate site that they will beforced to rent if they fail to acquire a Permit that allows themto show and sell artin their own home. Plaintiffs' Reply (Docket No. 19) at 2. TheHuffmires wisely do not restate their argument regarding theirartistically inclined heirs. Rather, the Huffmires submit a swornaffidavit wherein they aver that, to their personal knowledge,the rental price of an alternate site for sale of art work inBoothbay varies from $12,000 per year for off-the-street space to$30,000 per year for a prime location on the first floor ofCommercial Street.3 Plaintiffs' Reply at 8. They contend thatthe statutory amount shall, therefore, be met within five years.
The Court is satisfied that the Huffmires have set forthsubstantiated facts indicating that it is not a legal certaintythat the claim involves less than the jurisdictional amount.Thus, the Huffmires have succeeded in showing that they can meetthe subject matter jurisdictional requirements of diversity ofcitizenship jurisdiction as to the applicable jurisdictionalamount in controversy. Accordingly, because the parties arediverse and it is not clear to a legal certainty that the amountin controversy does not exceed $75,000, this Court hasjurisdiction over the subject matter of this case pursuant to28 U.S.C. § 1332, and it is unnecessary to determine whether theCourt has subject matter jurisdiction under 28 U.S.C. § 1331.
Having determined that the Court has subject matterjurisdiction to hear the matter pursuant to 28 U.S.C. § 1332, theCourt next must address Boothbay's argument that this Court,nonetheless, should abstain from deciding this case. Boothbayargues that the Court should dismiss, or at least stay, thefederal action pending resolution of the parallel state-courtaction under the doctrine articulated by the Supreme Court inColorado River Water Conservation Dist. v. United States,424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The Courtdisagrees that the Colorado River factors warrant abstention inthis case, but determines that it shall abstain from hearing theHuffmires' claims requesting a review of the Board's decision todeny their Permit application under the abstention doctrineestablished by the Supreme Court in its decision in Burford v.Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424(1943).4
1. Colorado River Abstention.
Boothbay contends that the Court should stay or dismiss theaction in the interest of judicial efficiency because theHuffmires have filed an identical suit in state superior court.In considering whether it should dismiss or stay this action, theCourt begins with the axiom that federal courts have a "virtuallyunflagging obligation . . . to exercise the jurisdiction giventhem." Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246."Generally, as between state and federal courts, the rule is that`the pendency of an action in the state court is no bar toproceedings concerning the same matter in the federal courthaving jurisdiction. . . .'" Id. (citing McClellan v.Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762(1910)). "It follows from this postulate that when a state courtand a federal court enjoy concurrent jurisdiction over aparticular suit, they both may, and under some circumstances,must, proceed with the respective litigations simultaneously."Burns v. Watler, 931 F.2d 140, 145 (1st Cir. 1991). In some"exceptional circumstances," however, wise judicialadministration permits the stay or dismissal of a federal suitdue to the presence of a concurrent parallel state courtproceeding. SeeColorado River, 424 U.S. at 818-19, 96 S.Ct. at 1246-47.
The narrow exception to the rule favoring the exercise ofjurisdiction exists to preserve the principle of wise judicialadministration. The Supreme Court in Colorado River and itsprogeny identified several factors that a federal court mayconsider when deciding whether "exceptional circumstances"justify a stay or dismissal of federal proceedings when a stateproceeding involving the same issues is also underway. They arethe following:
1) whether either court has assumed jurisdiction over a res; 2) the inconvenience of the federal forum; 3) the desirability of avoiding piecemeal litigation; 4) the order in which the forums obtained jurisdiction; 5) whether federal law or state law controls; and 6) whether the state forum will adequately protect the interests of the parties.
Colorado River, 424 U.S. at 817-21, 96 S.Ct. at 1246-48; MosesH. Cone Mem'l Hospital v. Mercury Constr. Co., 460 U.S. 1,15-25, 103 S.Ct. 927, 936-42, 74 L.Ed.2d 765; Burns, 931 F.2dat 146. The First Circuit Court of Appeals has added anadditional factor related to the order in which the forumsobtained jurisdiction that merits consideration, notably thevexatious or contrived nature of the federal action. See Burns,931 F.2d at 146. When a court considers whether it should stay ordismiss a parallel federal proceeding, no one factor isnecessarily determinative, and a carefully considered judgmenttaking into account both the obligation to exercise jurisdictionand the combination of factors counseling against the exercise ofjurisdiction is required. Villa Marina Yacht Sales, Inc. v.Hatteras Yachts, 915 F.2d 7, 12 (1st Cir. 1990) (citingColorado River, 424 U.S. at 818-19, 96 S.Ct. at 1247). Todetermine whether the present case presents the narrow exceptionto the Court's duty to exercise its jurisdiction, it is necessaryto weigh the foregoing factors.
Boothbay concedes that the first two factors do not weigheither in favor of or against staying or dismissing the federalaction because neither the state nor the federal court hasassumed jurisdiction over property subject to the lawsuit andthere is no evidence that the federal forum is less convenient tothe parties than is the state forum. Defendants' Response at 8.The third factor requires the Court to consider whether adecision to hear the duplicative proceeding in federal court willresult in piecemeal litigation. See Colorado River, 424 U.S. at819, 96 S.Ct. at 1247. In considering whether the concern foravoiding piecemeal litigation weighs against the exercise ofjurisdiction, "the district court must look beyond the routineinefficiency that is the inevitable result of parallelproceedings to determine whether there is some exceptionalbasis for requiring the case to proceed entirely in the [state]court." Burns, 931 F.2d at 146 (citing Villa Marina YachtSales, Inc., 915 F.2d at 16) (emphasis added). Only wherepiecemeal adjudication gives rise to harsh, contradictory, unfairconsequences, is piecemeal adjudication "exceptional" and weighsin favor of a stay or dismissal of federal proceedings. See Id.
Generally, inconsistent rulings by state and federal courtswill not present unfair contradiction in the same case because adecision issued in one court will bind the other court under thedoctrine of res judicata. Without indicating what issues in thecase it refers to, Boothbay argues that inconsistent rulings mayresult because some of the questions presented by the instantcase may be resolved by pretrial and prejudgment orders wellbefore trial. Defendants' Response at 8-9. It is true thatpreliminary decisions would not be binding on subsequentdeterminations of the same issues in the other forum and, thus,there is a danger that inconsistencies may result as toprejudgment rulings. This is true, however, of all situationswhere state and federal proceedings co-exist and, therefore, thisalone is not enough for this factor to weigh in favor of thisCourt's decline of its jurisdiction. See Villa Marina YachtSales, Inc., 915 F.2d at 16 (holding that "[d]ismissal is notwarranted simply because related issues otherwise would bedecided by different courts, or even because two courts otherwisewould be deciding the same issues."). Because Boothbay has notpresented to the Court a particularprejudgment ruling that, if resolved inconsistently by theforums, would result in harsh or unfair consequences, this factordoes not carry weight in the decision regarding abstention in thepresent case.
Of additional consideration is the fact that, in Moses H. ConeMem'l Hospital and Colorado River, where the Supreme Court foundthat the avoidance of piecemeal litigation was an influentialfactor weighing in favor of a federal court's decision toabstain, the Court relied heavily on the policies regardingpiecemeal litigation embodied in the federal statutes under whichthe claims arose. See Moses H. Cone Mem'l Hospital, 460 U.S. at20, 103 S.Ct. at 939 (The Arbitration Act); Colorado River, 424U.S. at 819, 96 S.Ct. at 1247 (The McCarran Amendement). Here, nofederal policy in favor of the avoidance of piecemeal litigationis at stake. Thus, the Court finds no "harsh, contradictory, orunfair consequences" that would result from litigating identicalsuits in two separate forums arising from the denial by the Boardof the Huffmires' application for their Permit. Consequently, thepiecemeal litigation factor does not weigh in favor of the Courtrelinquishing its jurisdiction.
The fourth factor requires the Court to consider the order inwhich the forums obtained jurisdiction. This factor has beenfurther refined by the Supreme Court to require a court toexamine the progress made in the federal forum at the time thedistrict court is determining whether or not to abstain. SeeMoses H. Cone Mem'l Hospital, 460 U.S. at 21-22, 103 S.Ct. at939-40; Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1247-48(considering the apparent absence of any proceedings in thedistrict court, other than the filing of the complaint prior tothe motion to dismiss). If substantial proceedings have takenplace at the time of the decision to stay or dismiss the federalaction, this factor counsels in favor of deciding the case.Moses H. Cone Mem'l Hospital, 460 U.S. at 22, 103 S.Ct. at 940.Here, the Huffmires filed suit in state and federal court on thesame day. See Complaint (Docket No. 1); Defendants' ResponseRegarding Subject Matter Jurisdiction, Exhibit 1 (statecomplaint). Moreover, this case has not proceeded far beyond aninitiatory stage in federal court.5 The Court is also notpersuaded that either action has progressed significantly beyondthe other. Identical motions have been filed in both actions, andthis Court has not as of yet ruled on any substantive motions.Because the action in federal court has not proceededsubstantially, nor has it proceeded further than the action filedin state court, this factor does not weigh against this Courtstaying or dismissing these proceedings.
In regard to the order in which the state and federal actionswere filed, the Court of Appeals for the First Circuit has heldthat it is also appropriate to consider the related matter of theplaintiffs motivation in filing the second lawsuit. See Burns,931 F.2d at 146; Villa Marina Yacht Sales, Inc., 915 F.2d at 15("A related factor that could tip the balance toward dismissal isthe motivation for the second lawsuit"); see also Moses H. ConeMem'l Hospital, 460 U.S. at 17 n.20, 103 S.Ct. at 937 n. 20 (noting with approval the lowercourt's consideration of a plaintiffs motive in filing the secondsuit but finding it not necessary to consider on appeal);Gonzalez v. Cruz, 926 F.2d 1, 4 (1st Cir. 1991) (holding thatthe filing of a second lawsuit by the same plaintiff may beexamined by the federal court in light of the motivation of theplaintiff in filing the second suit); Fuller Co. v. Ramon I.Gil, Inc., 782 F.2d 306, 309-10 (1st Cir. 1986). The vexatiousor reactive nature of either the federal or state litigation mayinfluence the decision whether to defer to a parallel statelitigation under Colorado River. See id.
Boothbay argues that the Huffmires filed the exact same case instate and federal courts with the intention to increaseBoothbay's attorneys' fees and ultimately to give the Huffmiresthe advantage of pursuing more aggressively the action in theforum that is more favorable to their claims. Defendants'Response at 9. Here, the state and federal suits are identicaland were filed on the same day. This is, thus, not a clearexample of reactive litigation such as where a plaintiff respondswith a federal filing in response to an adverse ruling in statecourt. See Gonzalez, 926 F.2d at 4. Furthermore, nothing in therecord suggests that the Huffmires' action was taken in bad faithas Boothbay suggests. Accordingly, this factor, especially inlight of this Court's duty to exercise its jurisdiction, weighsin favor of deciding not to abstain.
Even absent bad faith or evidence of a vexatious motive,appellate courts faced with the question of whether the districtcourt should abstain in a second lawsuit filed in federal court,identical to one filed by the same plaintiff in state court, haveconsidered this circumstance relevant in upholding district courtdecisions to dismiss the federal case. Villa Marina Yacht Sales,Inc., 915 F.2d at 14 (citing cases). The reasoning behind givingweight to the fact that an identical suit is filed by a plaintiffin federal court is based on removal principles. In AmericanInt'l Underwriters, the Court of Appeals for the Ninth Circuitconcluded that plaintiffs should not be allowed to refile theircomplaints in federal courts. The court noted that the right toremove a state court case to federal court is limited todefendants under 28 U.S.C. § 1441, and it stated that removalprinciples seemed applicable in this context because the filingof a repetitive lawsuit had the same effect as if the plaintiffhad actually removed the original suit. American Int'lUnderwriters v. Continental Ins. Co., 843 F.2d 1253, 1260-61(9th Cir. 1988). Here, the Huffmires filed identical lawsuits instate and federal court, thus undermining the premise behind thepolicy of restricting removal to federal court to defendants andthat plaintiffs are required to abide by their selection of aforum. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61S.Ct. 868, 85 L.Ed. 1214 (1941). Consequently, although not adispositive factor standing alone, this factor weighs in favor ofstaying or dismissing the federal action because it is theplaintiff who filed both a state and a federal suit, therebycontravening the principles behind the removal statute.
The Court must next consider the fifth factor — whether federallaw or state law controls. It is difficult to glean from theAmended Complaint the exact claims that the Huffmires havealleged in this action. After an initial cursory examination, itappears that the Huffmires' claims are no more than a request forreview of the Board's decision to deny the Permit application andthe manner in which the administrative proceedings wereconducted. The Huffmires complain that the Board's actions werearbitrary and capricious, that it failed to consider evidencesupplied by them for the Board's consideration, and that itincorrectly applied Boothbay's zoning ordinance. See AmendedComplaint, Count 1 ¶¶ 1-4, Count II ¶¶ 2, 6. As to relief, theHuffmires request judgment in their favor for the Permit allowingthem to display and sell art in their home, compensatory damages,interest, and costs. Amended Complaint at 9. After a carefulstudy of the Amended Complaint, however, the Court can reasonablyconclude that the Huffmires raise a state law claim, pursuant to30-A M.R.S.A. § 2691, for appellate review of the Board'sdecision denying their Permit application(Count II)6 and in addition, raise the following federalconstitutional claims: that the manner in which the Boardconducted the administrative hearing violated the Huffmires'right to due process and equal protection under the FourteenthAmendment of the federal constitution (Counts I, III), that thedenial of the Permit application constituted an unconstitutionaltaking of property under the Fifth and Fourteenth Amendments ofthe federal constitution (Count V), that the zoning ordinanceapplied to the Huffmires' Permit application is unconstitutionalon its face (Count I), and that 30-A M.R.S.A § 2691(3)(G) isunconstitutional as applied in this case because it denies them ajury trial of their constitutional claims (Count IV). Hence, theHuffmires raise claims which arise under both state and federallaw in this action.
The Supreme Court has written that, although the presence ofstate law issues may weigh in favor of the surrender of theCourt's jurisdiction, the presence of federal law issues mustalways be a major consideration weighing against the surrender ofjurisdiction. See Moses H. Cone Mem'l Hospital, 460 U.S. at 26,103 S.Ct. at 942. The Supreme Court has also held that when thestate court has concurrent jurisdiction over the federalconstitutional claims, the source-of-law factor has lesssignificance. See id. at 25, 103 S.Ct. at 942.
The Court of Appeals for the First Circuit has furthercautioned that only in rare circumstances will the presence ofstate law issues weigh in favor of the surrender of jurisdiction.See Villa Marina Yacht Sales, Inc., 915 F.2d at 15. Such rarecircumstances exist "only when a case presents `complex questionsof state law that would best be resolved by a state court.'"Id. The questions of whether the zoning ordinance and 30-AM.R.S.A. § 2691(3)(G) are constitutional are not complex. Whethera state law or procedure is constitutional can be resolved aseffectively in federal court as in state court. Abstention incases based on this factor where state law questions areunambiguous is, thus, impermissible because it "would convertabstention from an exception into a general rule." Examining Bd.of Engineers, Architects & Surveyors v. Flores de Otero,426 U.S. 572, 598, 96 S.Ct. 2264, 2279, 49 L.Ed.2d 65 (1976). As tothese claims, the source of law factor does not counsel in favorof abstention. The claim requesting regulatory review of theadministrative decision to deny the Huffmires' Permitapplication, however, can be resolved more effectively in statecourt because of the particular administrative review proceduresavailable under Maine law. This circumstance is, however, moreappropriately discussed in terms of Burford abstentionprinciples.
Finally, the sixth factor requires the Court to examine whetherthe state forum will adequately protect the interest of theparties. With respect to whether the state forum will adequatelyprotect the Huffmires' interests, it is clear that as to thefederal constitutional claims, both the state and federal forumswill adequately protect the interests of the parties. In regardto the claim requesting regulatory review of the administrativedecision to deny the Huffmires' Permit application, however, thestate court will more adequately protect the parties' interests.As discussed below in the section of this opinion discussingBurford abstention, a review procedure for state administrativedeterminations exists under state law. See 30-A M.R.S.A. §2691. The state court review includes an option for anindependent determination of facts regarding the reasonablenessof the Board's decision. See 30-A M.R.S.A. § 2691; M.R. Civ. P.80B(d). There does not exist a federal analog to this procedure.The Huffmires filed their Complaint in state court according toRule 80B of Maine's rules of civil procedure. Therefore, statecourt will more adequately protect the parties' interests inregard to the claim requesting administrative review of theBoard's decision.
To conclude, the Colorado River factors do not warrant adecision to abstain from hearing this case. The first two factorsare notmaterial in regard to a decision whether or not to abstain inthis case. Third, there is no risk that a decision not to abstainwould result in piecemeal litigation that would result in harshor unfair consequences to the parties. Fourth, there is noevidence that the federal litigation is vexatious or contrived.Furthermore, although the sequence in which the forums obtainedjurisdiction runs counter to the principles embodied in thedoctrine of removal and the federal proceeding has not progressedbeyond an initiatory phase, this is not sufficient, when weighedagainst the Court's unflagging obligation to exercise itsjurisdiction, to support a decision to abstain in this action. Asto the fifth and sixth factors, federal and state law issues areraised in this case over which the forums have concurrentjurisdiction. The existence of the federal constitutionalquestions weighs heavily in favor of the federal court retainingits jurisdiction. Furthermore, both the state and federal courtscan adequately protect the parties' interests in regard to theseclaims. Considering the "unflagging obligation" to exercisejurisdiction and the Huffmires' right to have the tribunals withjurisdiction entertain their claims, the Court will not stay ordismiss the present case in its entirety under the ColoradoRiver doctrine. As to the claim requesting a deferential reviewof the Board's decision, however, the fifth and sixth factorsunder Colorado River counsel in favor of abstention. A decisionto abstain from deciding this claim, however, is moreappropriately based on the doctrine of Burford abstention.
2. Burford Abstention.
Abstention is appropriate under the Burford doctrine as tothe Huffmires' request for a review of the Board's denial oftheir Permit application. Under the Burford doctrine, a federalcourt may decline to exercise its jurisdiction where "the statehas a unified scheme for review of its administrative orders andfederal intervention in cases in which diversity is present wouldhave a disruptive effect on the state's efforts to establish acoherent policy on a matter of substantial public concern." 17Charles A. Wright, Arthur R. Miller & Edward H. Cooper, FederalPractice and Procedure 485 (1978); Burford, 319 U.S. at 315,63 S.Ct. at 1098. Pursuant to this doctrine, "[a] federal court,by abstaining, may avoid the awkward circumstance of turning thefederal court into a forum that will effectively decide a host ofdetailed state regulatory matters, to the point where thepresence of the federal court, as a regulatory decision-makingcenter, makes it significantly more difficult for the state tooperate its regulatory system." Bath Mem'l Hospital v. MaineHealth Care Finance Comm'n, 853 F.2d 1007, 1012 (1st Cir. 1988).After the Supreme Court's decision in New Orleans PublicService, Inc. construed by the Court of Appeals for the FirstCircuit to limit the circumstances under which Burfordabstention is proper, abstention pursuant to this doctrine isonly appropriate where federal decision-making demands"significant familiarity with . . . distinctively localregulatory facts or policies." Fragoso v. Lopez, 991 F.2d 878,884 (1st Cir. 1993) (quoting New Orleans Public Service, Inc. v.Council of the City of New Orleans, 491 U.S. 350, 363-64, 109S.Ct. 2506, 2515-16, 105 L.Ed.2d 298 (1989)).
Abstention is appropriate under the Burford doctrine whenthere is a threat to the proper administration of aconstitutional state regulatory system. See Bath Mem'lHospital, 853 F.2d at 1013. Specifically, the threat avoided bya decision to abstain is that a federal court might, in thecontext of the state regulatory scheme, create a parallel,additional, federal regulatory review mechanism, the existence ofwhich would significantly increase the difficulty ofadministering the state regulatory scheme. See id. Were theCourt to review the Board's decision to deny the Huffmires'Permit application, it would create a parallel additional federalregulatory review mechanism.
The present action requires a deferential on-the-record reviewof the decision to deny the Huffmires' Permit application and theadministrative proceedings conducted by the Board that resultedin the denial. Maine law provides a mechanism for state courtreview of decisions made by administrative agencies such as theBoard in this case. Under Mainelaw, a plaintiff seeking review of an adverse administrativedecision may take appeal to state superior court in accordancewith Rule 80B of the Maine rules of civil procedure. See 30-AM.R.S.A. § 2691. Rule 80B provides the mode of review of anaction taken by a governmental agency including a zoning boardand pursuant to the rule, a party appealing an adverse decisionmay request a trial of the facts. See M.R. Civ. P. 80B(d). TheHuffmires filed their Complaint in superior court pursuant toRule 80B and have, thus, triggered the administrative reviewprocedures afforded under state law. The superior court functionsas an intermediate appellate court undertaking judicial review ofan administrative record, see Your Home, Inc. v. City ofPortland, 501 A.2d 1300, 1302 (Me. 1985), and determines onlywhether the decision of the Board was unlawful, arbitrary,capricious, or unreasonable. See Penobscot Area Housing Dev.Corp. v. City of Brewer, 434 A.2d 14, 21 (Me. 1981). Byproviding this review mechanism, the state has signaled itsinterest in regulatory coherency by providing a limited review ofadministrative decisions in superior court. A parallel federalproceeding conducting a review of the administrative decisioncould "in a very real sense . . . disrupt the regulatory scheme."See Armistead v. C & M Transport, Inc., 49 F.3d 43, 48 n. 4(1st Cir. 1995) (noting that where "[t]he state has signaled itsinterest in regulatory coherency by concentrating all claims inan exclusive administrative process," parallel federal suitscould disrupt the regulatory scheme) (citing cases). Review inthis Court would result in a duplicative federal regulatoryreview proceeding when one is available and has been requestedunder the state's regulatory review scheme in state court. Reviewwould, thus, interfere with the state's procedures and policiesin respect to review of administrative zoning decisions. Byabstaining from deciding this claim, the Court will avoiddisrupting the state's unified scheme for the review of zoningdecisions.
Furthermore, zoning decisions are of local concern and involvethe resolution of an issue governed primarily by local factors,with which state agencies and courts have greater expertise.Accordingly, the federal court's decision in this case as towhether or not the Board correctly denied, under Mainesubstantive law, the Huffmires' Permit application demandsfamiliarity with distinctively local regulatory facts andpolicies. See Fragoso, 991 F.2d at 884. By abstaining fromhearing this claim and letting the state court conduct theon-the-record deferential review of the Board's administrativedecision to deny the Huffmires' Permit application, the Court isavoiding the creation of a parallel, additional federalregulatory review mechanism in an area of local concern.
An additional consideration counseling in favor of abstainingin regard to this claim requesting review of the Board'sdecision, is the role that the Court would be playing in such areview. By conducting a deferential review of the Board'sdecision, the Court will be acting as an appellate court.Although a federal court has supplemental jurisdiction to hearsuch state claims when they are raised alongside federalconstitutional claims, as in this case, see City of Chicago v.Int'l College of Surgeons, 522 U.S. 156, 118 S.Ct. 523, 529-32,139 L.Ed.2d 525 (1997), the Court of Appeals for the FirstCircuit has indicated that it is wise to abstain from hearing theclaims because they require the court to conduct an appellatereview. See Armistead, 49 F.3d at 47. As a court of originaljurisdiction, a federal court does not have appellate power overoriginal proceedings in a state's administrative tribunals. Seeid. The limited appellate authority exercised by the statesuperior court under Maine law over state administrativeproceedings in the present case has no analog in a federaldistrict court. Accordingly, this consideration counsels in favorof a decision to abstain.
Accordingly, the Court shall abstain from hearing the claimrequesting a deferential review of the administrative proceedingbelow. The administrative review of the Board's decision and thetrial of the facts requested by the Huffmires according to Rule80B of Maine's rules of civil procedure, if granted by thesuperior court, shall be conducted in state superior court inaccordance with Maine law.
The Court, however, will not abstain from hearing the otherclaims raised in this case. Abstention under the Burforddoctrine is not appropriate simply because there is a threat thatthe federal court's decision may result in a state law or systembeing found unconstitutional. See Bath Mem'l Hospital, 853 F.2dat 1013 (The threatened interference sought to be avoided underthe Burford doctrine "does not consist merely of the threatthat the federal court might declare [the state law or system]unconstitutional."). A case considering the question of whether astate regulatory system or law is constitutional in the firstinstance does not, therefore, present a situation where Burfordabstention is appropriate.
The remaining claims in this case require the Court to pass onthe constitutionality of two state laws (the Boothbay zoningordinance and the state administrative review statute, 30-AM.R.S.A. § 2691), the procedural manner in which theadministrative procedures were conducted, and whether the denialof the Permit application constituted an unconstitutional taking.These claims do not require individualized review offact-specific regulatory decision-making. To the contrary, theyattack the statutes as they are written and as they were appliedto the Huffmires' application for a Permit. See Bath Mem'lHospital, 853 F.2d at 1014. As the Court of Appeals for theFirst Circuit has clarified, "that sort of risk is presentwhenever one attacks a state law on constitutional grounds in afederal court." Id. at 1013 (citing Zablocki v. Redhail,434 U.S. 374, 379-80 n. 5, 98 S.Ct. 673 n. 5, 54 L.Ed.2d 618 (1978)(holding "[t]here is, of course, no doctrine requiring abstentionmerely because resolution of a federal question may result in theoverturning of a state policy.")). It is not appropriate,therefore, for the Court to abstain from deciding the federalconstitutional questions raised in this case. However, the Courtwill stay the federal proceedings pending the state court'sdeferential review of the Board's decision to deny the Huffmires'Permit application. The Court will hear the constitutionalquestions, if they remain viable, after the state concludes itsreview of the Board's decision to deny the Huffmires' Permitapplication.7
Accordingly, the Court will ABSTAIN from hearing Count I inso far as it requestsa review of the Board's decision to deny the Huffmires' Permitapplication. The Court shall STAY the proceedings regarding theHuffmires' remaining constitutional claims until resolution ofthe state court's deferential on-the-record review of the Board'sdecision.
1. It is uncontested that the Huffmires and Boothbay satisfythe requirement that the parties be of diverse citizenship.
2. "The Board" refers collectively to Boothbay's PlanningBoard and Board of Appeals.
3. The Court notes that the Huffmires should have submittedthe affidavit in response to the Court's Order rather thanwaiting to attach it to its reply. However, the Huffmires arepro se litigants and their papers will be held to lessstringent standards than those drafted by lawyers. See Haines v.Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652(1972).
4. There are two additional sets of circumstances under whicha federal court may abstain from exercising its jurisdictionrecognized by the Supreme Court that do not apply here: 1) afederal court should abstain where resolution of an unsettledstate law question would render unnecessary the need to decide afederal constitutional question, R.R. Comm'n of Texas v. PullmanCo., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); and 2) afederal court should abstain where, absent bad faith, harassment,or a clearly invalid state statute, federal jurisdiction issought to be invoked to restrain state criminal proceedings,Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669(1971).
5. The Complaint was filed on July 17, 1998, (Docket No. 1)and Boothbay filed an answer on August 3, 1998, (Docket No. 2).On August 4, 1998, Magistrate Judge Cohen issued an Order to ShowCause regarding the requirement that Donald W. Huffmire'ssignature appear on the Complaint. (Docket No. 4). On August 17,1998, the Huffmires filed a copy of the Complaint bearing DonaldW. Huffmire's signature. (Docket No. 8). Along with its originalanswer, Boothbay filed a motion to dismiss defendant George Horn,Jr. from the Complaint because, other than being named in thecaption, no substantive claims are brought against him in thebody of the Complaint. (Docket No. 3). On August 17, theHuffmires filed an Amended Complaint that removed George Horn,Jr.'s name from the caption of the Complaint. (Docket Nos. 13),and on September 17, 1998, Boothbay filed an Answer to theAmended Complaint (Docket No. 16). Magistrate Judge Cohen issueda Scheduling Order on August 4, 1998, (Docket No. 5). Accordingto the Scheduling Order, discovery was completed in the federalaction on November 24, 1998. As of October 7, 1998, neither partyhad begun discovery. See Defendant's Response at 9.
In addition, the Huffmires have filed a motion for a trial denovo (Docket No. 6, 11), and a Motion for a More DefiniteStatement (Docket No. 9). Boothbay has filed responses to thesemotions, (Docket Nos. 7, 10), and the Huffmires have filedreplies (Docket Nos. 12, 15). The Court has not ruled on eitherof the these motions. The Huffmires have filed the same motionsin state court. See Defendant's Response, Exhibit B.
6. The Huffmires subsequently filed a motion for a trial denovo of the facts and offered a statement of proof in both stateand federal actions. They filed the motion in state courtpursuant to Maine R. Civ. P. 80B. They did not cite legalauthority for the motion in federal court.
7. The court notes that its decision to stay this aspect ofthe case is consistent with a recent opinion issued by the Courtof Appeals for the First Circuit staying further proceedingspursuant to the primary jurisdiction doctrine until a federalagency ruled on the underlying issues. See American AutomobileMfrs. Assoc. v. Massachusetts Dep't of Envtl. Protection,163 F.3d 74, 81 (1st Cir. 1998). The primary jurisdiction doctrine isa doctrine specifically applicable to claims properly cognizablein a court that require resolution of some issue within thespecial competence of an administrative agency. See id. (citingReiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122L.Ed.2d 604 (1993)). The following factors are identified by theCourt of Appeals for the First Circuit in American AutomobileMfrs. Assoc. to guide the decision as to whether or not to defera matter to an agency determination under the primaryjurisdiction doctrine, especially when the matter involvesquestions of fact: 1) whether the agency determination lies atthe heart of the task assigned the agency by Congress; 2) whetheragency expertise is required to unravel intricate, technicalfacts; and 3) whether, though perhaps not determinative, theagency determination would materially aid the court. Id. at 81(citing Commonwealth of Massachusetts v. Blackstone Valley Elec.Co., 67 F.3d 981, 992 (1st Cir. 1995)).
Here, the Court has decided to abstain from hearing theHuffmires' claims requiring under state law a deferential reviewof the Board's denial of their Permit application. The Court willdefer to the state court's review of that aspect of theadministrative proceeding which is also requested by theHuffmires in their parallel state court proceeding. The statecourt review of the Board's decision lies at the heart of thetask assigned to the state court pursuant to Maine'sadministrative review statute, 26 M.R.S.A. § 2691. The statuterequires the superior court to conduct a deferential review ofadministrative hearing and decision. Furthermore, the Huffmireshave requested a trial of the facts in state court pursuant toRule 80B(d) of Maine's rules of civil procedure which, ifgranted, may require that court to conduct an evidentiaryhearing. Finally, the state court's decision may materially aidthis Court in deciding whether the Huffmires' due process andequal protection rights were violated by the Board. Thus, thequestion of whether the Board properly denied the Huffmires'Permit application under Maine's substantive and procedural lawis in the primary jurisdiction of the state Superior Court aspart of the appellate review apparatus governing zoning decisionsand the state court's decision may effectively moot theHuffmires' federal constitutional claims. Thus, the decision tostay the federal proceedings pending the state court's review ofthe administrative agency's decision in this case is inaccordance with the purposes and values upheld in AmericanAutomobile Mfrs. Assoc.