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Holding v. City of Des Moines

Court of Appeals of Iowa

February 7, 2018

STRATFORD HOLDING, ET AL., Plaintiffs-Appellants,
v.
CITY OF DES MOINES, Defendant-Appellee.

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

         A 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. AFFIRMED.

          Loyd W. Ogle of Ogle Law Firm, P.L.L.C., Des Moines, for appellants.

          John O. Haraldson, Assistant City Attorney, for appellee.

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

          TABOR, Judge.

         All persons similarly situated should be treated alike. Stratford Holding, LLC, [1] 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 situated" applicants.

         Because 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.

         I. Facts and Prior Proceedings

         Stratford 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.[2]

         In 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.

         In 2015, Stratford sought to rezone its property as a C-2 district, [3] 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.[4] 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 as follows:

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.

         Counsel 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.

         Board chairperson Mel Pins expressed his concern that this convenience store was emblematic of the character of the neighborhood:

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 to ...

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