                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-4199
                                   ___________
Night Clubs, Inc., doing business as    *
Regina's House of Dolls, II,            *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
   v.                                   * District Court for the
                                        * Western District of Arkansas.
City of Fort Smith, Arkansas; William   *
W. Harding, Individually and as         *
Director of Planning; Michael Fisher,   *
Individually and as Commissioner;       *
James Damron, individually and as       *
Commissioner; John E. Keller,           *
Individually and as Commissioner;       *
George McGill, Individually and as      *
Commissioner; Jack Grober,              *
Individually and as Commissioner;       *
Ronald W. Rouse, Individually and as    *
Commissioner; Lawrence A. Devero,       *
Individually and as Commissioner;       *
Lynn V. Snider, Individually and as     *
Commissioner; Robert J. Mulson, Jr.,    *
Individually and as Commissioner;       *
Fort Smith Planning Commission,         *
                                        *
             Appellees.                 *

                                   ___________

                             Submitted: May 14, 1998
                             Filed:      December 14, 1998
                                    ___________
Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.
                             ___________

HANSEN, Circuit Judge.

       Night Clubs, Inc., doing business as Regina's House of Dolls II (Regina's),
appeals from the district court's dismissal with prejudice of its federal civil rights
action. Regina's argues that the district court erred in abstaining under the Younger
doctrine,1 and that even if Younger abstention was appropriate, dismissal with
prejudice was not. We affirm the district court's decision to abstain pursuant to
Younger, but we vacate the dismissal and remand for the entry of a stay. We grant
both parties' motions to supplement the record.

                                          I.

      Regina's leases certain property located at 7900 Highway 71 in Fort Smith,
Arkansas. The leased property is zoned as "Commercial-5," a designation which
allows Regina's to engage in "retail uses that serve the motoring public" and are
"characterized by a high level of vehicular activity." Fort Smith Mun. Code § 27-180.
On March 20, 1997, Regina's filed a Business Registration Application with the City
of Fort Smith (the City), requesting permission to open a nightclub on the property.
Because nightclubs are listed as allowable on land zoned as Commercial-5, see Fort
Smith Mun. Code § 27-106, the Fort Smith Planning Commission approved the
application. Less than two weeks later, on April 1, 1997, Regina's filed a second



      1
       The Younger abstention doctrine, which has its roots in Younger v. Harris, 401
U.S. 37 (1971), directs federal courts to abstain from accepting jurisdiction in cases
where equitable relief is requested and where granting such relief would interfere with
pending state proceedings in such a way as to offend principles of comity and
federalism. See American Nat'l Bank v. Parkman, 702 F. Supp. 168, 170 (N.D. Ill.
1988).

                                          -2-
application, this time requesting permission to open an exotic (i.e., nude) dancing
facility at the same location.

        The staff at the Planning Commission determined that exotic dancing was not
a "listed commercial entertainment use" within the meaning of sections 27-96 and 27-
106 of the zoning ordinance.2 Pursuant to section 27-97 of the zoning ordinance, the
matter was referred to William W. Harding, the Director of Planning, for "an
administrative decision as to the appropriate zones" in which nude dancing, an unlisted
use, would be allowed. Before rendering a decision, Harding consulted with the City
Attorney, who informed Harding that a total ban would probably not survive a court
challenge. (Jt. App. at 502.) Harding determined that nude dancing would be
permissible only in property designated as Commercial-5-SPL-D, a zoning
classification reserved for uses serving "the motoring public" which "are characterized
by a higher level of vehicular activity." Fort Smith Mun. Code § 27-181(a) (emphasis
added). At the time of his decision, only one one-half acre plot of land in Fort Smith
was zoned as Commercial-5-SPL-D. (Jt. App. at 502.) Harding explained his decision
in the following way in his letter to Regina Capps, owner of Regina's:

      As outlined within the procedures of [section 27-97,] in my capacity of
      [sic] Director of Planning I have made an administrative decision that
      exotic dancing facilities and adult oriented businesses shall be assigned
      to the Commercial-5-SPL-D zoning district. This decision is made as the


      2
         The zoning ordinance is reproduced at pages 332-357 of the joint appendix.
Section 27-106 of the ordinance is a schedule listing various commercial entertainment
uses and noting their zoning classifications. Among these is "dance halls, night clubs,
or discotheques," but no listed use mentions nude or exotic dancing or any form of
"adult" entertainment. The ordinance defines "dance halls, night clubs, or
discotheques" to mean "an establishment whose primary activity is the provision of
facilities for dancing and live entertainment or amplified music. Such establishment
may or may not provide on-premises consumption of alcoholic beverage." Fort Smith
Mun. Code § 27-2.

                                          -3-
      four Commercial-5 special use zones are categorized by virtue of the use
      intensities within the respective categories. Intensities are evaluated on
      the basis of anticipated traffic and/or pedestrian movements associated
      with a particular use and other characteristics relative to the impact to
      surrounding property.

(Jt. App. at 319.) Harding went on to explain that because the property at 7900
Highway 71 was zoned Commercial-5, the property did not qualify for the intended
use. Accordingly, Harding informed Capps that the application for a business license
had been denied. (Id.)

       Regina's appealed Harding's decision to the full Planning Commission. See Fort
Smith Mun. Code § 27-97(3). Pursuant to § 27-97(4), the Commission was required
to consider "the nature of the proposed use and its compatibility with uses permitted
in the zones for which the use is proposed" before it rendered its decision.
Accordingly, the Commission held a public hearing, at which it solicited arguments
from counsel and comments from citizens in attendance. Regina's attorney argued that
Harding's decision conflicted with the plain meaning of the Municipal Ordinance and
the First Amendment to the United States Constitution. (Jt. App. at 368, 385.) After
the discussion concluded, the Commission voted unanimously to affirm Harding's
decision denying Regina's application.

       Pursuant to Fort Smith Municipal Code section 27-97(5) and Arkansas Code
Annotated section 14-56-425 (1987), Regina's filed a lawsuit in Sebastian County
Circuit Court for review of the Planning Commission's decision. This suit was filed
on June 12, 1997. The original complaint alleged federal constitutional violations in
addition to state law claims, but Regina's voluntarily amended the complaint and
eliminated the federal constitutional claims. On October 15, 1997, the Sebastian
County Circuit Court ruled that Regina's had failed to perfect its appeal from the
Planning Commission's decision; accordingly, it dismissed Regina's state action.
Regina's filed a notice of appeal on November 14, 1997, arguing that the state's

                                         -4-
perfection rules are unconstitutionally vague. This appeal was pending before the
Supreme Court of Arkansas at the time this case was submitted.

       On July 24, 1997, Regina's filed a civil rights action under 42 U.S.C. § 1983 in
federal district court, naming as defendants the City of Fort Smith, various members
of the Planning Commission, and the Planning Commission itself.3 Regina's federal
complaint alleges violations of its First Amendment rights and requests monetary
damages in addition to injunctive relief. On August 6, 1997, the City filed a motion
to dismiss Regina's federal suit, arguing that the district court should abstain from
accepting jurisdiction in deference to the ongoing state proceeding. On September 3,
1997, the district court granted the City's motion and dismissed Regina's federal action
with prejudice, relying on the Younger doctrine. After the state circuit court dismissed
Regina's appeal, Regina's filed a motion for amendment of judgment and new trial in
federal district court, contending that there was now no ongoing state court proceeding
to support Younger abstention. The motion was denied. Regina's appeals, arguing that
the Younger doctrine is inapplicable and that, in any case, dismissal with prejudice was
inappropriate.

                                           II.

         The Supreme Court recently affirmed that federal courts "'have no more right
to decline the exercise of jurisdiction which is given, than to usurp that which is not
given,'" and that "'[t]he one or the other would be treason to the Constitution.'" New
Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 358 (1989) (NOPSI) (quoting
Cohens v. Virginia, 6 Wheat. 264, 404 (1821)). This is true because "Congress, and
not the Judiciary, defines the scope of federal jurisdiction within the constitutionally
permissible bounds." Id. at 359. The Court stressed in NOPSI that the federal courts'
"virtually unflagging" duty to exercise jurisdiction "does not eliminate . . . the federal


      3
       We refer to the defendants collectively as "the City" throughout.

                                           -5-
courts' discretion in determining whether to grant certain types of relief." Id. (internal
quotations omitted). The common law discretion of courts to withhold equitable forms
of relief predates the enactment of the statutes defining federal jurisdiction, and the
Supreme Court has therefore interpreted the jurisdictional statutes as preserving this
traditional discretion in the federal courts. See id. The court has formulated various
"abstention" doctrines, which are not "rigid pigeonholes into which federal courts must
try to fit cases," id. (internal quotations omitted), but rather classes of cases in which
federal courts may properly exercise their traditional discretion to withhold equitable
or quasi-equitable forms of relief.

       In Younger, the Supreme Court held that federal courts may not enjoin pending
state court criminal proceedings except in very unusual situations. The Younger
doctrine has since been expanded to prohibit federal courts from interfering in certain
pending state civil cases, see Huffman v. Pursue, Ltd. 420 U.S. 592, 603-07 (1975),
as well as pending state administrative proceedings which are judicial (as opposed to
legislative) in nature, see Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc.,
477 U.S. 619, 627 (1986); Middlesex County Ethics Comm. v. Garden State Bar Ass'n,
457 U.S. 423, 431-32 (1982).

       There are essentially three issues that must be addressed in determining whether
to invoke the Younger abstention doctrine: (1) whether the action complained of
constitutes an ongoing state judicial proceeding; (2) whether the proceedings implicate
important state interests; and (3) whether there is an adequate opportunity in the state
proceedings to raise constitutional challenges. See Middlesex , 457 U.S. at 432. If all
three questions are answered affirmatively, a federal court should abstain unless it
detects "bad faith, harassment, or some extraordinary circumstance that would make
abstention inappropriate." Id. at 435.

       We review the district court's decision to abstain under Younger for abuse of
discretion. Fuller v. Ulland, 76 F.3d 957, 959 (8th Cir. 1996). Central to our review

                                           -6-
is the question of whether the district court properly applied the three Middlesex
criteria. We first examine whether the initial state action constituted an "ongoing state
judicial proceeding." Middlesex, 457 U.S. at 432; see also NOPSI, 491 U.S. at 368
("[I]t has never been suggested that Younger requires abstention in deference to a state
judicial proceeding reviewing legislative or executive action. Such a broad abstention
requirement would make a mockery of the rule that only exceptional circumstances
justify a federal court's refusal to decide a case in deference to the States."). The
Supreme Court has described the distinction between judicial proceedings and
legislative proceedings as follows:

      A judicial inquiry investigates, declares and enforces liabilities as they
      stand on present or past facts and under laws supposed already to exist.
      That is its purpose and end. Legislation on the other hand looks to the
      future and changes existing conditions by making a new rule to be
      applied thereafter to all or some part of those subject to its power.

491 U.S. at 370-71 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226
(1908) (Holmes, J.)).

        The promulgation of zoning ordinances is clearly a legislative rather than
judicial function. See Horizon Concepts, Inc. v. City of Balch Springs, 789 F.2d 1165,
1167 (5th Cir. 1986). Similarly, the Supreme Court of Arkansas has held that "the
amendment to a comprehensive zoning ordinance or a rezoning of a certain area . . .
becomes a part of the existing comprehensive ordinance and, a fortiorari, is a
legislative act," Wenderoth v. City of Fort Smith, 472 S.W.2d 74, 76 (Ark. 1971), and
we agree. On the other hand, where an appeal to an Arkansas circuit court is from an
action applying zoning regulations rather than from an action enacting or amending
zoning regulations, Arkansas courts correctly consider the action quasi-judicial in
nature. City of Jonesboro v. Vuncannon, 837 S.W.2d 286, 288 (Ark. 1992).




                                          -7-
        Our review of the facts leads us to conclude that the Planning Commission's
denial of Regina's business license application is more accurately characterized as
judicial rather than legislative. Clearly, the Commission did not rezone any land or
create any new zoning classifications—in fact, the Planning Commission lacks the
power to do either of these things, as only the governing body of the City can exercise
legislative authority. See Ark. Code Ann. § 14-56-422. Instead, every aspect of the
Commission's decision approximated judicial rather than legislative behavior. The
action arose when Regina's, a private party, applied for a business license to have exotic
dancing at 7900 Highway 71. In deciding to deny the application, the Planning
Commission staff first looked at existing legal authorities and determined that under
existing law, exotic dancing was not a listed use. In so doing, the staff necessarily
interpreted the definition of various listed uses such as "nightclub" and determined that
exotic dancing did not fall within any of them. Director of Planning Harding then
examined the various zoning classifications and determined that the use sought by
Regina's fit most properly into the existing classification "Commercial-5-SPL-D."
Harding explained that he based his decision on "anticipated traffic and/or pedestrian
movements associated with [the proposed use] and other characteristics relative to the
impact to surrounding property." (Jt. App. at 319.) Because the land at 7900 Highway
71 was not zoned for SPL-D uses, Director Harding denied Regina's application. The
full Planning Commission then considered "the nature of the proposed use and its
compatibility with uses permitted in the zones for which the use [was] proposed," Fort
Smith Mun. Code § 27-97(4), and unanimously affirmed Harding's decision denying
Regina's application. In short, the Commission's action was much more akin to the
business of courts than the business of legislatures, and accordingly, we conclude that
the initial proceeding from which the state court appeal was taken was itself judicial in
nature.

      In addition to being judicial in nature, Younger requires that the state proceeding
must be ongoing at the time the district court enters its order regarding abstention. See
Wiener v. County of San Diego, 23 F.3d 263, 266 (9th Cir. 1994) (in considering

                                          -8-
whether a state proceeding is ongoing, federal court should look at "the status of the
state court proceeding at the time of the district court's decision rather than on its current
status on appeal"). It is undisputed that the state action was ongoing at that time. 4
Accordingly, we find that the first of the Middlesex criteria is satisfied, i.e., that the state
proceeding is both judicial and ongoing.

        The other two Middlesex criteria are clearly satisfied. Regarding the second of
the Middlesex criteria, it is well-established that for abstention purposes, the
enforcement and application of zoning ordinances and land use regulations is an
important state and local interest. See Huffman, 420 U.S. at 595-605, (civil enforcement
of nuisance law); Sinclair Oil Corp. v. County of Santa Barbara, 96 F.3d 401, 409 (9th
Cir. 1996) ("land use planning is a sensitive area of social policy" which federal courts
typically ought not enter), cert. denied, 118 S. Ct. 1386 (1998); Pomponio v. Fauquier
County Bd. of Supervisors, 21 F.3d 1319, 1327 (4th Cir. 1994) (en banc) ("[S]tate and
local zoning and land use law is particularly the province of the State and . . . federal
courts should be wary of intervening in that area in the ordinary case . . . [because] [w]e
can conceive of few matters of public concern more substantial than zoning and land use
laws"); Izzo v. Borough of River Edge, 843 F.2d 765, 769 (3d Cir.1988) ("We share .
. . the federal judiciary's traditional respect for local administration and control of land
use regulation. Federal courts have expressly disavowed any desire to sit as a statewide
board of zoning appeals hearing challenges to municipalities . . . . Land use policy
customarily has been considered . . . an area in which the tenets of federalism are
particularly strong.").




       4
        In fact, Regina's state proceedings are still "ongoing." Although Regina's state
action was dismissed by the state trial court on November 20, 1997, Regina's has
appealed the dismissal. Because the state proceedings have not concluded, Regina's
argument that the district court erred in "continuing to abstain" under Younger once
the state proceedings had concluded (see Appellant's Br. at 30-40) is premature.

                                             -9-
        Regarding the third Middlesex criterion, Regina's clearly could have raised, and
in fact initially did raise, its federal constitutional claims before the state court. We need
not reach the question of whether the planning commission was competent to address
Regina's constitutional arguments, because it is sufficient for Younger purposes "that
constitutional claims may be raised in state-court judicial review of the administrative
proceeding." Ohio Civil Rights Comm'n, 477 U.S. at 629.5 Regina's does not contest
that it had the power to bring a separate count alleging federal civil rights violations in
its state court complaint. In fact, Regina's original complaint did allege such federal
violations, but Regina's subsequently amended the complaint to remove all references
to its federal claims. This move makes clear that Regina's made a conscious decision
not to bring a section 1983 claim in its state action. As the Supreme Court has noted,
"when a litigant has not attempted to present his federal claims in related state-court
proceedings, a federal court should assume that state procedures will afford an adequate
remedy." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987). Regina's must at least
attempt to raise its federal claims in state court before we will consider its argument that
it is impossible to do so.

      Thus, we hold that the district court correctly determined that all three of the
Middlesex criteria are present. Additionally, we find that none of the exceptions to the
Younger doctrine apply. In particular, Regina's has failed to convince us that the zoning
ordinance is "flagrantly and patently violative of express constitutional prohibitions in
every clause, sentence and paragraph, and in whatever manner and against whomever
an effort might be made to apply it." Huffman, 420 U.S. at 611; see Middlesex , 457
U.S. at 435. Accordingly, we find no abuse of discretion in the district




       5
       Although Regina's argues that the Planning Commission lacked the competence
to consider Regina's federal Constitutional arguments, it is undisputed that Regina's
made such arguments to the Planning Commission. (See Jt. App. at 385 ("First
Amendment . . . gives [Regina's] the same right to operate within our city limits.").)

                                           -10-
court's decision to abstain under Younger. See Fuller, 76 F.3d at 959 (standard of
review).

                                           III.

       Having decided that abstention under Younger was appropriate, we must next
address Regina's argument that the district court erred in dismissing the action with
prejudice. In general, the Younger abstention doctrine "directs federal courts to abstain
from granting injunctive or declaratory relief that would interfere with pending judicial
proceedings." Martinez v. Newport Beach City, 125 F.3d 777, 781 (9th Cir. 1997)
(citing Younger, 401 U.S. at 40-41) (emphasis added). In such cases, "Younger v.
Harris contemplates the outright dismissal of the federal suit, and the presentation of all
claims, both state and federal, to the state courts." Gibson v. Berryhill, 411 U.S. 564,
577 (1973) (a § 1983 case involving only injunctive relief, and not damages); see also
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731 (1996) (noting that under Supreme
Court precedents, "federal courts have the power to dismiss or remand cases based on
abstention principles only where the relief being sought is equitable or otherwise
discretionary").

        In cases where damages are sought in the federal suit, the Supreme Court instructs
that traditional abstention principles generally require a stay as the appropriate mode of
abstention:

      In those cases in which we have applied traditional abstention principles
      to damages actions, we have only permitted a federal court to withhold
      action until the state proceedings have concluded, that is, we have
      permitted federal courts applying abstention principles in damages actions
      to enter a stay, but we have not permitted them to dismiss the action
      altogether.




                                          -11-
Quackenbush, 517 U.S. at 730 (internal quotations and citations omitted). The Court
in Quackenbush noted one exception, and thus preserved the limited holding of Fair
Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100 (1981), where the Court
allowed a dismissal on abstention principles of a section 1983 damages case, because
the award of damages would have first required a declaration that a state tax scheme was
unconstitutional. Id. at 719; see also, Amerson v. State of Iowa, 94 F.3d 510, 513 (8th
Cir. 1996) (affirming the dismissal of a § 1983 claim for damages where any award of
damages first required a discretionary declaration that a state court termination of
parental rights was unconstitutional), cert. denied, 117 S. Ct. 696 (1997). Our court has
recently written that when abstention under Younger is merited, "'so long as a possibility
of return to federal court remains, a stay rather than a dismissal is the preferred mode
of abstention.'" Fuller, 76 F.3d at 960-61 (quoting International Ass'n of Entrepreneurs
v. Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995), cert. denied, 516 U.S. 1072 (1996)). In
Fuller, we affirmed the district court's decision to abstain under Younger, but we
vacated its decision to do so via dismissal, and we remanded the case to the district court
for entry of a stay. See 76 F.3d at 960-61.

        In this section 1983 case, Regina's requested monetary damages in addition to
injunctive relief. The present case does not fall within the very limited holding of Fair
Assessment because an award of damages would not require us first to declare
unconstitutional a state statute or to overturn a state court judgment on a matter of state
policy. See Amerson, 94 F.3d at 513. Therefore, dismissal of the action is not
permitted, and precedents require that we stay this action for damages. We vacate the
dismissal and remand for the entry of a stay pending the final resolution of the state
litigation.

                                           IV.

       Accordingly, we vacate the district court's dismissal and remand to the district
court for the entry of a stay. Once the proceedings related to Regina's appeal from the

                                          -12-
Planning Commission's decision have reached their final denouement, the district court
should lift its stay and proceed with the consideration of Regina's federal claims on the
merits.



      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -13-
