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

Court of Appeals of Iowa

January 24, 2018

SHOP N SAVE LLC d/b/a SHOP N SAVE #1, Plaintiff-Appellant,
v.
CITY OF DES MOINES ZONING BOARD OF ADJUSTMENT, Defendant-Appellee.

         Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.

         Shop N Save LLC argues the City of Des Moines Zoning Board of Adjustment acted illegally in denying its application for a conditional use permit to operate a liquor store.

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

          Michelle Mackel-Wiederanders, Assistant City Attorney, for appellee.

          Heard by Doyle, P.J., and Tabor and McDonald, JJ.

          DOYLE, PRESIDING JUDGE.

         Shop N Save LLC (Shop N Save) filed a certiorari action challenging the decision of the City of Des Moines Zoning Board of Adjustment (Board) denying it a conditional use permit (CUP) to operate a liquor store. The district court found substantial evidence supported the Board's denial of the CUP and affirmed. On appeal, Shop N Save argues the Board acted illegally in denying the CUP. Because substantial evidence supports the district court's decision, we affirm.

         I. Background Facts and Proceedings.

         This appeal concerns a Shop N Save convenience store located on Martin Luther King Jr. Parkway in Des Moines. The store operated as a limited food/retail sales establishment, which may derive no more than forty percent of its gross sale receipts from the sale of liquor, wine, beer, and tobacco products. In March 2015, Shop N Save applied for a CUP to operate as a liquor store, which would eliminate the store's limit on gross sales receipts from the sale of those products.

         The Board considered Shop N Save's CUP request at an April 2015 meeting. The district court summarized the evidence presented:

A City staff member issued a report recommending the denial of a permit for the Shop to operate as a liquor store and proposed a permit be issued allowing [Shop N Save] to continue to operate as a limited food/retail establishment. In addition, two residents living in close proximity to [Shop N Save] spoke in opposition of the issuance of a liquor store permit citing ongoing problems with noise, crime, and other concerns. Specifically, several residents spoke about [Shop N Save]'s property being littered with trash, liquor, and beer encroaching on the surrounding properties, windows rattling from loud music and other disturbances in the late hours of the morning, public urination, physical altercations, narcotics transactions, public intoxication, and trespassing. All of these issues occurring with [Shop N Save] having a more restricted sale of alcohol as a limited food/retail establishment. It was even reported young children had witnessed the instances of public urination on [Shop N Save]'s
premises. Numerous written comments were also submitted by neighbors in opposition of the liquor store permit, citing many of the same concerns and issues set forth previously. In addition, a neighborhood association adjacent to [Shop N Save] called Prospect Park voiced concerns for the granting of such a permit, noting the disruption liquor stores pose to residential neighborhoods.

         The Board found Shop N Save failed to satisfy the criteria necessary for a liquor store CUP. In its April 28, 2015 decision and order, the Board specifically found,

The subject property is in very close proximity to single family residential uses, as there is a residential property 45 feet to the north, 0 feet to the east, and 12 feet to the south. Thus, occupying the premise with a liquor store would not adequately safeguard the health, safety and general welfare of persons residing in the adjoining and surrounding residential area. Testimony provided by neighbors during the hearing, and concerns raised by the Prospect Park Neighborhood Association in a letter to the Board, demonstrated that the sale ...

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