from the Iowa District Court for Polk County, Robert B.
convenience store seeks a remand to the district court for
further examination of the Board of Adjustment's denial
of its request for a use variance and conditional use permit
that would have allowed the store to sell liquor.
W. Ogle of Ogle Law Firm, P.L.L.C., Des Moines, for
O. Haraldson, Assistant City Attorney, for appellee.
by Doyle, P.J., and Tabor and McDonald, JJ.
persons similarly situated should be treated alike. Stratford
Holding, LLC,  the owner of a convenience store at 1372
East Fourteenth Street, relies on this equal protection
principle from the Article I, Section I of the Iowa
Constitution to challenge the city of Des Moines's denial
of a use variance and conditional use permit that would have
allowed the store to sell liquor. Stratford sought a writ of
certiorari in the district court, which affirmed the decision
of the city's board of adjustment. Appealing that ruling,
Stratford argues the district court erred in deciding the
use-variance denial was not arbitrary and capricious without
considering the board's actions toward "similarly
Stratford raises its constitutional claim for the first time
on appeal, our court has nothing to review. In addition,
Stratford provides no authority for remanding this case for
consideration of the board's actions in unrelated zoning
appeals. Accordingly, we affirm the district court.
Facts and Prior Proceedings
Holding owns the 2156-square foot building at the corner of
East Fourteenth Street and Cleveland Avenue where Santokh
Singh Nagra operates a Shop N Save convenience store. The
store operates as a "limited food sales
establishment" in a location zoned as C-1, a
neighborhood retail commercial district.
2005, this Shop N Save first received a liquor license with
the proviso that its alcohol sales not exceed fifty percent
of its gross receipts. Then Des Moines changed its zoning
laws. In 2010, the city started requiring stores in C-1
districts to receive no more than forty percent of their
revenue from the sale of alcohol. In 2011, the city amended
the ordinance to require a conditional use permit (CUP) for
any limited food and retail sales establishments which wanted
to sell alcohol. The city granted existing businesses until
the end of 2013 to conform to these new requirements.
2015, Stratford sought to rezone its property as a C-2
district,  which the city council denied. The
business's next step was to apply for a use variance and
CUP for a limited food sales establishment wishing to sell
beer, wine, and liquor. The board of adjustment considered
Stratford's request at its May 27 meeting. The city's
staff recommended the board deny the use variance for the
sale of liquor, but allow a CUP for the sale of beer and wine
with certain conditions. The Capitol Park Neighborhood
Association spoke in favor of Stratford's request for
both a use variance and CUP, expressing that its members were
looking forward to the owner making improvements at the
store. The board received two written comment cards from
neighbors opposing the variance and one area resident spoke
in opposition at the meeting. During their deliberations, the
board members noted a history of police calls to this
business. Counsel for the business addressed those concerns
In reference to the police calls, this is a little rougher
area of town. These aren't calls or complaints about the
business. Most of these are calls generated by the business
about things they see observed in the neighborhood. They are
the eyes and ears of this neighborhood.
told the board Nagra had been working cooperatively with the
neighborhood association to spruce up the property and to
alleviate business practices that would contribute to litter,
loitering, and crime. But counsel also told the board that
selling liquor was key to the store's profit margin.
chairperson Mel Pins expressed his concern that this
convenience store was emblematic of the character of the
Corner businesses, the neighborhood businesses, lead with the
character of what the neighborhood is or isn't or can be.
So we've got to find ways to improve the look of our
business and our city or we're going to take away the
essential characters of our neighborhoods. We aren't
going to be compliant with the spirit of the zoning ordinance
and we're not going to have a good city.
Now, how alcohol fits into that, how liquor fits into that, I
don't know. So let's talk about it. But we've got