August 27, 2013 4th Circuit published opinion

Town of Nag’s Head v Toloczko

Town declared Toloczko’s beachfront home a nuisance and demanded it be demolished. Toloczko countersued in federal court seeking a declaration Town violated their property rights. The district court abstained under the Burford doctrine. The panel reversed. It held that North Carolina law is now clear that Town lacks the power to enforce nuisance law under the public trust doctrine and thus there is no delicate issue of state law nor would a federal declaratory judgment interfere with North Carolina’s efforts to create a coherent state policy. The panel also held that prudence dictated the takings claim in this case should be heard now in this federal case and Toloczko should not be required to litigate the issue in state court before getting their day in federal court.

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