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Shop N Save Food LLC v. City of Des Moines Zoning Board of Adjustment

Court of Appeals of Iowa

August 2, 2017

SHOP N SAVE FOOD LLC d/b/a SHOP N SAVE, Plaintiff-Appellant,

         Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         A convenience store appeals the district court order affirming the denial of its application for a conditional use permit. AFFIRMED.

          Alfredo Parrish of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.

          Douglas P. Philiph, Assistant City Attorney, Des Moines, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          TABOR, Judge.

         The owner of a Des Moines convenience store applied for a conditional use permit (CUP) that would allow the business to sell wine and beer. After hearing from the owner's attorney, as well as neighbors in opposition, the city's zoning board of adjustment denied the application. The district court affirmed the board's denial, and the store owner now appeals. The owner contends the store is "legally entitled" to a CUP because (1) the record does not support the district court's reasons for affirming the board's decision and (2) the court failed to consider whether imposing reasonable conditions on the operation of the business would have ensured compliance with the city ordinance. Finding substantial evidence to justify the district court's decision, we affirm.

         I. Facts and Prior Proceedings

         At issue is a Shop N Save store at 1829 Sixth Avenue, located in a "C-1" neighborhood retail commercial district.[1] Previous owners of the store had been permitted to sell liquor, beer, and wine, but the store's liquor license was suspended for the year leading up to the current application.[2] Due to changes in zoning regulations, the new owner was required to seek a CUP to engage in the sale of alcohol.[3] The owner filed the application in early March 2015, and the board set the matter for a public hearing on April 22.

         At the outset of the hearing, a city staff member presented a written report, which recommended approval of the CUP subject to ten conditions.[4] He provided the board with letters from local neighborhood associations, as well as police reports from the neighborhood. The staff member opined the police reports were of limited value-the Shop N Save had been either closed or barred from selling alcohol for most or all of the time covered by the reports.[5] The city considered only one of the incidents listed on the report to be related to the operation of the Shop N Save and noted the police reports did not directly corroborate the concerns of criminal activity touted by the individuals living in the neighborhood.

         Next, counsel for Shop N Save presented argument. He recognized "there had been problems in the past" with crime around this Shop N Save location but asserted the new owner was willing to work with the neighborhood associations to address those problems. Board members were skeptical about the legitimacy of the ownership transfer, and counsel acknowledged the transfer had not yet occurred. Counsel told the board the store was being run by "a combination of both [old and new management] but it's generally the new management . . . running the store." When pressed about the certainty of the transfer, counsel responded: "All I can say is I have the agreement" and "[h]e's already bought it." But the attorney clarified the official transfer was not scheduled to occur until May of that year.

         Six community members-some acting on behalf of neighborhood associations-spoke out against the issuance of the CUP, primarily citing concerns about crime. A neighbor of the store explained:

I have had people, you know, from fights and loitering, come into my yard asking for money. I . . . pick up trash that comes off of their property on a daily basis. I deal with the loud music. I deal with . . . seeing prostitution.
. . . . And the most frustrating aspect is that there does not appear to be . . . an intention to control what happens on the property.

         Another nearby property owner asserted the crimes he had witnessed, such as drug dealing and prostitution, likely were not reflected in the police reports because the crimes happened too quickly and "[c]alling the police does no good." Some of those who opposed the issuance of the CUP linked their concerns about crime to the sale of alcohol. One community member told the board he believed the sale of beer and wine drew "the wrong people"-people who "buy the beer, linger around, drink it, get drunk, and start things."

         Because of their past negative experiences, including a failed agreement between the outgoing Shop N Save management and the local neighborhood associations, the community members predicted any conditions imposed by the board would be ineffective. But in the event the board allowed the CUP, some individuals suggested additional conditions, including an earlier closing time and the presence of a security guard in the evening. Counsel for Shop N Save resisted these conditions, reasoning they wouldn't "necessarily realistically address[] what the problems were" and "the first step would be to talk to the neighborhood and come up with a plan together."

         In a four-to-one vote, the board denied the CUP. Board members expressed concern about the ambiguity in the transfer of ownership and the "problematic" history of the location. In a written decision issued after the hearing, the board reasoned "the proximity of the property, combined with the years of problems associated with the site, ...

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