Steakhouse Inc v. City of Raleigh NC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEAKHOUSE, INCORPORATED, a
Florida corporation; INVESTMENT
PARTNERS, INCORPORATED, a Florida
corporation,
Plaintiffs-Appellants,
v. No. 97-2341
THE CITY OF RALEIGH, NORTH
CAROLINA, a North Carolina
municipal corporation; RALEIGH
BOARD OF ADJUSTMENT,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-97-177-5-BO)
Argued: September 23, 1998
Decided: January 21, 1999
Before WILKINSON, Chief Judge, and HAMILTON and MOTZ,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Hamilton and Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: David Alan Wasserman, Winter Park, Florida, for Appel-
lants. Dorothy K. Woodward, Associate City Attorney, CITY OF
RALEIGH, Raleigh, North Carolina; John M. Silverstein, SATISKY
& SILVERSTEIN, Raleigh, North Carolina, for Appellees. ON
BRIEF: Thomas Franklin Loflin, III, LOFLIN & LOFLIN, Durham,
North Carolina, for Appellants. Thomas A. McCormick, City Attor-
ney, CITY OF RALEIGH, Raleigh, North Carolina, for Appellees.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Steakhouse, Incorporated seeks to construct a topless dancing bar
in Raleigh, North Carolina. It challenges the City's special use permit
procedure for adult establishments. Steakhouse brought suit in federal
district court claiming that the permit procedure is an unconstitutional
prior restraint. It moved for a preliminary injunction mandating the
issuance of a special use permit for its proposed bar. The district court
denied the motion, and Steakhouse appeals. Because the likelihood
that Steakhouse will ultimately succeed on the merits of its claim is
slight, we are unable to conclude that the district court abused its dis-
cretion in denying preliminary injunctive relief. Accordingly, we
affirm the judgment.
I.
Steakhouse wishes to join the eleven adult establishments currently
operating in Raleigh, North Carolina, by opening a topless bar. To
build in Raleigh, a developer must obtain city approval for its site
plan. Site plan review involves only the generic plan for a proposed
building and is conducted by the Planning Department, the Planning
Commission, the City Council, or some combination of the three.
Certain types of uses, including topless bars, require a special use per-
mit in addition to site plan approval. Raleigh, N.C., Code § 10-2144.
Special use permit review is conducted by the Raleigh Board of
Adjustment (BOA). The BOA is a separate entity from the City. It is
an independent, quasi-judicial body operating under specific state
statutory authority. N.C. Gen. Stat. § 160A-388.
To receive a special use permit, a topless bar must satisfy specific
parking, advertising, concentration, and distance requirements.
2
Raleigh, N.C., Code § 10-2144(b)(1)-(4). Similarly, the prospective
owners of such a bar must demonstrate that it will not adversely affect
public services and facilities such as parking, traffic, and police. Id.
§ 10-2144(b)(6). In addition, they must show that the bar's "second-
ary effects," such as noise, light, stormwater runoff, parking, and
pedestrian circulation will not adversely affect adjacent properties. Id.
If the BOA decides to grant a permit, it may append up to thirteen
enumerated conditions to that grant. Id.§ 10-2141(c). The BOA is
not, however, limited to those thirteen conditions and may attach oth-
ers as is appropriate. Id. Judicial review of all BOA determinations is
"in the nature of certiorari." N.C. Gen. Stat.§ 160A-388(e).
After locating a site for its bar, Steakhouse filed a site plan applica-
tion with the City of Raleigh's Planning Department on November 4,
1996. The application stated that Steakhouse wished to construct a
restaurant and lounge. On November 13, 1996, it filed an application
for a special use permit to operate an "adult establishment" on the
same site.1 The Planning Commission recommended approval of
Steakhouse's site plan to the City Council. Upon learning of the
intended adult use for the site, however, the City Council tabled
Steakhouse's application pending the BOA's special use permit deci-
sion. The BOA held a hearing on January 13, 1997, at which it denied
Steakhouse's application for a special use permit on the grounds that
Steakhouse's proposal provided for an insufficient number of parking
spaces and failed to demonstrate that Steakhouse's bar would not
adversely affect public services or adjacent properties.
Rather than petition for certiorari, Steakhouse brought suit in the
United States District Court for the Eastern District of North Carolina.
It then filed a motion for a preliminary injunction seeking a special
use permit. The district court denied that motion, and Steakhouse now
appeals.2
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1 The City defines adult establishment to include adult bookstores,
adult motion picture theaters, adult mini motion picture theaters, and any
establishment featuring topless dancers, go-go dancers, strippers, male or
female impersonators, or similar entertainers. See Raleigh, N.C., Code
§ 10-2002; N.C. Gen. Stat. § 14-202.10(2).
2 When Steakhouse originally filed suit, the BOA was operating under
a now superseded set of procedural rules for special use permits. During
3
II.
In deciding whether to grant a preliminary injunction, the district
court is to consider three factors. First, it must balance the likelihood
of irreparable harm to the plaintiff if the injunction is refused against
the likelihood of irreparable harm to the defendant if it is granted.
Second, the court should consider the likelihood that the plaintiff will
succeed on the merits. The more the balance of harms leans away
from the plaintiff, the stronger his showing on the merits must be.
Finally, the court must consider the public interest. Blackwelder Fur-
niture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). When
reviewing a denial of a preliminary injunction, this court applies an
abuse of discretion standard. Direx Israel, Ltd. v. Breakthrough Med.
Corp., 952 F.2d 802, 814 (4th Cir. 1991). "[T]he grant of interim
relief [is] an extraordinary remedy involving the exercise of a very
far-reaching power, which is to be applied only in[the] limited cir-
cumstances which clearly demand it." Id. at 811 (internal quotation
marks omitted).
A.
Steakhouse argues that the balance of harms militates in favor of
a preliminary injunction. Specifically, Steakhouse claims that the First
Amendment protection due topless bars is so significant that any
_________________________________________________________________
the pendency of this action the BOA amended its rules to require that it
make a determination within 90 days of receiving an application and to
facilitate prompt judicial review of the BOA's decisions. The City argues
that these rule changes render Steakhouse's claim moot.
We cannot agree. The new rules adopted in large part the BOA's prior
practice. Steakhouse challenges these new rules every bit as vigorously
as it did the prior practice. Indeed, Steakhouse has insisted that the 90-
day period for administrative action is impermissibly long and that the
rules continue to unconstitutionally require it to prove that it will not
create negative secondary effects. Moreover, Steakhouse maintains its
objections to the rest of Raleigh's special use permit procedure. It attacks
the procedure for failing to cabin the substantive aspects of the BOA's
decisionmaking process and for failing to provide prompt judicial review
on the merits of the BOA's decisions. When a live controversy remains
on appeal, as it does in this case, we are obliged to hear it.
4
infringement tips the harms balance in its favor, trumping any harm
the City might suffer were we to grant the injunction. Steakhouse
claims that "[t]he loss of First Amendment freedoms for even mini-
mal periods of time, unquestionably constitutes irreparable injury"
justifying the grant of a preliminary injunction. Elrod v. Burns, 427
U.S. 347, 373 (1976) (plurality opinion).
Assuming arguendo that topless dancing is entitled to the full mea-
sure of First Amendment protection, but see Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 581 (1991) (Souter, J., concurring in the judg-
ment), the expression inherent in topless dancing is different from
pure speech because it comes bundled in conduct. Expressive conduct
enjoys less protection than does pure speech and restrictions on its
exercise are more likely to be constitutionally permissible. See, e.g.,
United States v. O'Brien, 391 U.S. 367, 376 (1968). This is so
because restrictions on expressive conduct typically act not on the
communicative component, but on the noncommunicative aspects of
the conduct. These restrictions often seek to dampen the noncom-
municative secondary effects of that conduct rather than the expres-
sion itself. See Barnes, 501 U.S. at 582 (Souter, J., concurring in the
judgment).
In fact, nude and topless barroom dancing have a long history of
spawning deleterious effects. They encourage prostitution and the
criminal abuse and exploitation of young women. See California v.
LaRue, 409 U.S. 109, 111 (1972) (noting that"[p]rostitution occurred
in and around [topless bars], and involved some of the female danc-
ers" and that "[i]ndecent exposure to young girls, attempted rape,
[and] rape itself" also were quite common around such establish-
ments). Indeed, Steakhouse's own Florida operations have long histo-
ries of secondary blight. One club was the location of 261 calls to the
police between January 1995 and December 1996. Another was the
site of 150 such calls over the same period. The disturbances that
prompted the calls involved not simply lascivious conduct but
drunken driving, larcenies, assaults, and narcotics use. The First
Amendment does not foreclose communities from taking modest pre-
cautions against the secondary maladies of nude or topless barroom
dancing.
Even apart from the nature of the right, Steakhouse's casual pursuit
of its permit gives its cries of irreparable injury a tinny pitch. Steak-
5
house delayed the permitting process on two separate occasions. First,
Steakhouse filed its applications for site plan approval and for a spe-
cial use permit on November 4 and November 13, 1996, respectively.
This meant that the BOA would have heard its special permit request
on December 9, 1996, roughly one month before the Planning Com-
mission considered its site plan. Steakhouse, however, requested that
the BOA delay its review until January 13, 1997. Second, on February
3, 1997, Steakhouse's counsel heard the BOA's Sessions Reporter,
Donna Hester, dictating the record from the January 13 meeting --
a prerequisite to any judicial appeal of the BOA's permit decision.
Rather than requesting an expedited effort, or even ensuring that the
process was proceeding along its normal schedule, counsel told Hes-
ter "there was no rush" and instructed her to take her time. It seems
curious to hear Steakhouse now complain about the loss of its
asserted rights for "even [a] minimal period[ ] of time." Elrod, 427
U.S. at 373 (plurality opinion).
On the other side of the equation, we are not free to ignore the
harms to the City were we to grant a preliminary injunction. As noted
above, topless dancing establishments can create negative side effects.
These establishments may cause injury to the citizens of a city and
damage to their property. They also cause many lesser effects -- for
example, here the BOA found that Steakhouse's proposed bar pro-
vided an insufficient number of parking spaces and would create haz-
ardous conditions for pedestrian and automotive traffic in the area.
All of these effects tend to lower surrounding property values. More-
over, localities experience real harms when federal courts become
unnecessarily involved in local land-use decisions-- decisions that
often require specific knowledge of local conditions.
Finally, were we to grant the preliminary injunction we would risk
vesting in Steakhouse a right under North Carolina law to construct
its proposed establishment, irrespective of whether a court later found
that permanent injunctive relief was inappropriate. Section 160A-
385.1 grants a landowner a right to "undertake and complete the
development and use of property," N.C. Gen. Stat.§ 160A-
385.1(b)(6), once a city has approved a "site specific development
plan." Id. § 160A-385.1(a). Such approval includes the granting of a
special use permit such as the one at issue. Id. § 160A-385.1(b)(5).
Although no North Carolina court has directly addressed the applica-
6
tion of this provision to the granting of a preliminary injunction, we
cannot say with any certainty that none would find section 160A-
385.1 applicable.
In sum, Steakhouse has failed to demonstrate that it would suffer
irreparable harm without a preliminary injunction, and a fortiori, that
any harm that it might suffer decidedly outweighs that which would
befall the City of Raleigh were this court to grant the injunction.
Without this showing, Steakhouse must present strong evidence that
it is likely to succeed on the merits of its constitutional claim.
B.
Steakhouse maintains that it is likely to succeed on the merits of
its claim because Raleigh's special use permit scheme is an unconsti-
tutional prior restraint. As we noted in 11126 Baltimore Boulevard v.
Prince George's County, Md., an ordinance acts as such a restraint
when "it prohibits [adult establishments] from operating anywhere
within the [City] until permission in the form of a special exception
has been granted." 58 F.3d 988, 995 (4th Cir. 1995) (en banc). Conse-
quently, Raleigh's scheme must sufficiently cabin the decision-
maker's discretion, provide for a prompt administrative deter-
mination, and provide for prompt judicial review. FW/PBS, Inc. v.
City of Dallas, 493 U.S. 215, 226-27 (1990). We remain cognizant,
however, that "[e]ach medium of expression . . . must be assessed for
First Amendment purposes by standards suited to it, for each may
present its own problems." Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 557 (1975). With that admonition in mind, we address
Steakhouse's claims seriatim.
1.
Steakhouse maintains that sections 10-2144(b)(6) and 10-2141(c)
of the Raleigh code are unconstitutional because they fail to cabin the
BOA's discretion sufficiently as it passes upon special use permit
applications. Section 10-2144(b)(6) provides that an applicant must
demonstrate that its use will not adversely affect public services such
as parking, traffic, and police or adversely affect adjacent properties
with respect to such things as parking, pedestrian circulation, and
safety. Raleigh, N.C., Code § 10-2144(b)(6). Section 10-2141(c) pro-
7
vides that the BOA may append any one or a combination of thirteen
factors to its grant of a special use permit. Id. § 10-2141(c). The
BOA, however, is not limited to these conditions and may include
others. Id.
First, Steakhouse complains that section 10-2144(b)(6) duplicates
the parking and safety concerns the Planning Commission must
already take into account when it reviews a site plan, and thereby
serves as a ruse to protect the BOA's unfettered discretion. It is not
true, however, that section 10-2144(b)(6)'s parking and safety consid-
erations are duplicative with respect to topless dancing establish-
ments. The parking and safety standards that the Planning
Commission applies to site plan review come from estimates of the
normal impact a commercial establishment will have on a surround-
ing area. Raleigh certainly is allowed to recognize that some estab-
lishments may not fit that generic commercial profile and to provide
for more stringent requirements to address their special characteris-
tics. Traffic and safety concerns as well as parking requirements may
increase when an establishment offers adult entertainment. Indeed,
another topless dancing club in Raleigh provides for three times the
number of parking spaces that Steakhouse proposed in its site plan
despite the fact that the establishments would be roughly the same
size. We cannot find that section 10-2144(b)(6)'s parking and safety
requirements are duplicative -- topless dancing bars and ordinary
commercial establishments themselves may simply be different.
Second, Steakhouse argues that section 10-2144(b)(6) provides no
express criteria for determining whether a proposed use will adversely
affect public services such as police protection or create secondary
effects such as parking overflow. Steakhouse claims that the Supreme
Court struck down a similar provision in Shuttlesworth v. City of
Birmingham, 394 U.S. 147 (1969). The Court in Shuttlesworth, how-
ever, faced a much more broadly worded provision than the one at
issue. There, a Birmingham ordinance required a permit for any
parade or public demonstration. It provided that such permit should
issue unless the City Commission "in its judgment[determined that]
the public welfare, peace, safety, health, decency, good order, morals
or convenience require that it be refused." Id. at 149-50. In place of
these boundless terms, section 10-2144(b)(6) specifically requires the
BOA to consider a topless bar's effect on parking, traffic, police pro-
8
tection, noise, light, stormwater runoff, pedestrian circulation, and
safety. Rather than allowing the decisionmaking body to manipulate
such malleable concepts as local welfare, decency, and good order,
section 10-2144(b)(6) channels the BOA's discretion, forcing it to
focus on concrete topics that generate palpable effects on the sur-
rounding neighborhood.
Finally, Steakhouse maintains that section 10-2141(c) provides the
BOA with unfettered discretion because it leaves open the list of con-
ditions the BOA may attach to its grant of a permit. However, the
enumeration of thirteen specific conditions leaves the ordinance less
open-ended than Steakhouse would have us believe. Moreover, the
thirteen conditions do not relate in any way to expressive speech.
Rather, they address the well-known variables inherent in any devel-
opment (e.g., appearance of the proposed building, dedication of
street and utility rights of way to the public, drainage systems, sign-
age, etc.) that local governments have long been permitted to consider
as a matter of their traditional land-use authority.
2.
Steakhouse also claims that Raleigh's special use permit review
procedure lacks the requisite procedural safeguards. First, Steakhouse
argues that the BOA's rules do not provide a reasonably short time
frame within which the BOA must make its determination.
We believe, however, that the BOA's rules do provide a reasonable
time frame for an administrative decision. In determining the reason-
ableness of the time period, this court must consider the type of judg-
ments the BOA must make, the process in which it must engage, and
the hardship placed on topless bars as a result of the restraint. See
11126 Baltimore Blvd., 58 F.3d at 997. The BOA's rules provide that
"the Board shall mail to or personally serve the applicant with the
final decision of the Board as entered in the Board's minutes no later
than ninety (90) days after the applicant files a completed application
with the Sessions Reporter for the Board." Board of Adjustment,
Raleigh, N.C., Rules § V(D)(1) (1997).
There is nothing unconstitutional about the BOA's ninety-day rule,
given the nature of the decision and the tasks that must be performed
9
prior to and after the BOA's meeting. See, e.g. , 11126 Baltimore
Blvd., 58 F.3d at 998 (citing with approval Wolff v. City of Monticello,
803 F. Supp. 1568, 1574 (D. Minn. 1992) (noting that 90-day time
period is not per se unreasonable)). Determining whether a topless bar
strains public services and imposes adverse secondary effects on
neighboring landowners requires the BOA to analyze several complex
considerations. Moreover, the procedures involved in coming to a
decision require some time. Prior to the meeting, the Sessions
Reporter must notify all adjacent landowners of the permit request,
place a sign on the property giving notice of the meeting, publish an
advertisement for the meeting, and prepare materials for the BOA's
members. After the meeting, the Sessions Reporter must transcribe
the meeting, and the BOA's attorney must prepare preliminary find-
ings of fact and conclusions of law. Then the BOA must make a final
determination. The City represents that to compress this schedule fur-
ther would result in hasty decisionmaking, harming not only the City
but the applicant. We agree and, as a result, cannot find that ninety
days is constitutionally impermissible.
It is instructive to note the promptness with which the BOA acted
on Steakhouse's application. Steakhouse filed its application on
November 13. By January 13, two months later, Steakhouse knew its
answer. And, pursuant to BOA policy, it would have received the
final written decision within one more month had Steakhouse's own
counsel not informed the BOA's Sessions Reporter there was no need
to hurry. Steakhouse simply cannot complain about the speed with
which the BOA acted.
Second, Steakhouse complains that sections 10-2144(b)(6) and 10-
2141(a)(7) of the Raleigh code unconstitutionally place the burden of
proving no adverse secondary effects on the applicant during the
administrative process.3 Steakhouse relies for this proposition on
Freedman v. Maryland, where the Supreme Court required film cen-
sors, rather than film distributors, to petition the judiciary to enforce
any decision to deny a license to a film distributor and, once in court,
_________________________________________________________________
3 Section 10-2144(b)(6) provides the list of adverse effects which the
BOA must find the proposed use not to generate. Raleigh, N.C., Code
§ 10-2144(b)(6). Section 10-2141(a)(7) places the burden of proving no
adverse effects on the applicant. Id. § 10-2141(a)(7).
10
to bear the burden of proof that the license should be denied. 380 U.S.
51 (1965). Freedman is distinguishable here on two grounds. Initially,
Freedman addressed judicial review, not the administrative process.
In addition, the one time the Supreme Court considered whether to
extend this part of Freedman from film censorship attempts to adult
establishment licensing schemes, it split on the question. FW/PBS,
493 U.S. 215.4 We now decline, as did Justices O'Connor, Stevens,
and Kennedy, to extend this part of Freedman to the process by which
Raleigh licenses topless bars, especially the administrative portion of
that process. In Freedman, the Court understandably imposed signifi-
cant burdens on film censors because "it may prove too burdensome
[for film distributors] to seek review of the[administrative] determi-
nation" through "a protracted and onerous course of litigation."
Freedman, 380 U.S. at 59. Given the promptness with which the
BOA must pass on applications, we have no reason to believe that
these establishments will be dissuaded from applying for special use
permits merely because they bear the burden of persuasion as to sec-
ondary effects. Moreover, we note, as did Justice O'Connor, that per-
mitting schemes like Raleigh's do not directly regulate content. See
FW/PBS, 493 U.S. at 229. They are a far cry from the censorship
scheme present in Freedman.
3.
Finally, Steakhouse argues that BOA's rules and section 160A-
388(e) together fail to provide special use permit applicants with
prompt judicial review on the merits. Section 160A-388(e) provides
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4 In passing on the constitutionality of a Dallas adult establishment
licensing scheme, Justice O'Connor, joined by Justices Stevens and Ken-
nedy, argued that the Freedman factor should not apply. FW/PBS, 493
U.S. at 228-30 (plurality opinion). Justice Brennan, joined by Justices
Marshall and Blackmun, suggested that it should. Id. at 238-42 (Brennan,
J., concurring in the judgment). Justice White, joined by Chief Justice
Rehnquist, argued that prior restraint analysis did not apply to such a
content-neutral licensing scheme. Id. at 244-49 (White, J., concurring in
part and dissenting in part). Justice Scalia dissented on other grounds. Id.
at 250-64 (Scalia, J., concurring in part and dissenting in part). The result
is that the applicability of the Freedman"burden" rule to an ordinance
such as this one is unresolved.
11
that a final decision by the BOA may be appealed within thirty days
through a petition "in the nature of certiorari" to state superior court.
N.C. Gen. Stat. § 160A-388(e). Steakhouse maintains that certiorari
review is insufficient because a court need not grant it, and even if
it does, it need not make a decision within a definite time period.
As noted, the Supreme Court requires that we analyze Raleigh's
procedure with the knowledge that "[e]ach medium of expression
. . . must be assessed for First Amendment purposes by standards
suited to it, for each may present its own problems." Southeastern
Promotions, 420 U.S. at 557. This is why, in 11126 Baltimore
Boulevard, we recognized that the constitutional requirements "may
vary in different contexts." 58 F.3d at 997 (internal quotation marks
omitted). It is clear, for example, that many forms of expression --
films, parades, demonstrations, leaflets, all forms of printed matter
and spoken messages -- tend to be time sensitive. Even a short
restriction may sacrifice the saliency of their message. In Freedman,
for instance, the Court was concerned that Maryland's film censorship
procedure would greatly harm film distributors because of the small
window of opportunity they enjoyed in which to show a film. 380
U.S. at 61. The Court worried that by the time the distributor navi-
gated the administrative and judicial review processes, it would "find
the most propitious opportunity for exhibition past." Id. Topless danc-
ing does not go similarly stale -- it tends not to be keyed to external
events, and the strength of whatever message it conveys remains more
or less constant over time.
Viewed in this manner, Raleigh's procedure provides for sufficient
judicial review of a topless bar's application for a special use permit.
Initially, it is instructive that the BOA has done what it reasonably
could to speed review of its decisions. See 11126 Baltimore Blvd., 58
F.3d at 1001 n.18. Unless good cause exists to oppose a writ of certio-
rari, the BOA will stipulate to the writ within five days of a request
for stipulation. It will transmit the record to the court no later than
five days after it has received notice of a grant of the writ. Finally,
it will submit its brief within fifteen days of having received the peti-
tioner's brief. To the extent that it is within its power, the BOA has
ensured prompt judicial review.
12
Further, section 160A-388(e) ensures prompt judicial review on the
merits of a topless bar's application. It provides that a petitioner must
file its writ within thirty days of the BOA's determination. North Car-
olina's common law writ is a "simple and expeditious" way to obtain
judicial review. Little v. City of Locust, 349 S.E.2d 627, 629-30 (N.C.
App. 1986). In deciding whether to grant a writ, the superior court
must find: 1) that no appeal is provided by law; 2) a prima facie case
of error below; and 3) merit to the petition. North Carolina Cent.
Univ. v. Taylor, 471 S.E.2d 115, 118 (N.C. App. 1996), aff'd, 481
S.E.2d 83 (N.C. 1997). Consequently, even when the superior court
denies the writ, it appears to consider the merits. The respect that
comity requires we accord state courts invokes a presumption that the
superior court would provide Steakhouse expeditious review.5
C.
Finally, Steakhouse maintains that the public interest would be
served if it obtained a preliminary injunction. Steakhouse simply
states that it is in the public interest to enjoin an unconstitutional stat-
ute. That is true. But Raleigh's special use permit process is not
unconstitutional as it pertains to topless dancing bars. The process
serves simply to protect Raleigh's citizenry from the negative second-
ary effects associated with such establishments. In addition, granting
Steakhouse's request for a preliminary injunction would appear to
contravene the general rule that land-use disputes affecting local com-
munities must not lightly be removed from them. Sylvia Dev. Corp.
v. Calvert County, Md., 48 F.3d 810, 828-29 (4th Cir. 1995); Gardner
v. City of Baltimore Mayor, 969 F.2d 63, 67-68 (4th Cir. 1992). For
these reasons, granting a preliminary injunction would not be in the
public interest.
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5 Here, however, we cannot know how a North Carolina superior court
would respond were Steakhouse to petition for a writ because Steakhouse
never did so. Instead, immediately upon the BOA's unfavorable permit
decision, Steakhouse ignored the state judicial system entirely and filed
suit in federal district court. Notwithstanding this failure, we have none-
theless entertained Steakhouse's challenge to Raleigh's procedure as we
believe 11126 Baltimore Boulevard, 58 F.3d at 995, and Chesapeake
B&M, Inc. v. Harford County, Md., 58 F.3d 1005, 1011-12 (4th Cir.
1995) (en banc), require us to do.
13
III.
We need not decide whether Raleigh's procedure would suffice as
a means of review of other forms of expression or other exercises of
First Amendment rights. We hold only that Steakhouse has shown lit-
tle likelihood of prevailing in its challenge to Raleigh's special use
permitting procedure as it pertains to topless barroom dancing. The
district court accordingly did not abuse its discretion in denying pre-
liminary injunctive relief.
AFFIRMED
14