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Lime Lounge, LLC v. Zoning Board of Adjustment of City of Des Moines

Court of Appeals of Iowa

February 6, 2019

LIME LOUNGE, LLC, and THUNDER & LIGHTNING, INC., Plaintiffs-Appellants,
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF DES MOINES, IOWA, Defendant-Appellee.

          Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         Lime Lounge, LLC, and Thunder & Lightning, Inc., appeal the revocation of the conditional use permit issued by the zoning board.

          George Qualley IV and Cornelius S. Qualley of Qualley Law, PLC, Des Moines, for appellants.

          Luke M. DeSmet, Assistant City Attorney, Des Moines, for appellee.

          Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J. [*]

          DANILSON, SENIOR JUDGE.

         Lime Lounge, LLC, and Thunder & Lightning, Inc. (hereinafter collectively "Lime Lounge") appeal the dismissal of their petition for certiorari issued by the district court in Lime Lounge's challenge to the revocation of the conditional use permit (CUP) issued by the Zoning Board of Adjustment of the City of Des Moines (Board). Lime Lounge raises numerous contentions that the Board's revocation of its CUP was procedurally flawed and illegal and that the district court's review was in error. We disagree and affirm.

         I. Background Facts and Proceedings.

         Lime Lounge operates a bar on East Grand Avenue in Des Moines, which is authorized to sell alcoholic beverages at that location pursuant to an August 31, 2011 CUP. Lime Lounge's original CUP provided:

WHEREFORE, IT IS ORDERED that the appeal for a conditional use permit for a business selling wine, liquor, and/or beer, to allow use of the 42-foot by 39-foot (1638 square feet) building as a tavern with a 17-foot by 39-foot (663 square feet) patio to the west of the building, is granted subject [to] the following conditions:
(1) Any business shall have a main entrance oriented toward either East Grand Avenue or East 5th Street.
(2) Any business selling liquor, wine, and/or beer shall operate in accordance with a liquor license obtained through the Office of the City Clerk as approved by the city council.
(3) The business shall comply with article IV of chapter 42 of the city code pertaining to noise control.
(4) Live outdoor music on any patio shall be limited to non-amplified performances. Any outdoor sound or music on any patio shall be limited to levels that would be considered background auditory in nature.
(5) Litter and trash receptacles shall be located at convenient locations inside and outside the premises, and operators of the business shall remove all trash and debris from the premises and adjoining public areas on a daily basis.
(6) Any renovation of the building must be in compliance with current building codes with issuance of any necessary permits by the permit and development center.
(7) The conditional use permit shall be subject to further amendment or revocation if the zoning enforcement officer determines that the operation of the business becomes a nuisance or exhibits a pattern of violating the conditions set forth in the conditional use permit.

         In July 2015, Lime Lounge received notice from the zoning enforcement officer that "the city has received numerous complaints regarding sound on the patio." The notice stated further:

Sound, above background in nature without a sound permit, is a violation of the [Board's] order granting a conditional use permit. We find the levels and disturbance to neighbors constitutes a nuisance. We find the use of outside speakers without a sound permit constitutes a pattern and practice of violating the terms and conditions of the [Board's] decision and order.

         Lime Lounge was notified the Board would reconsider Lime Lounge's CUP at its August 26, 2015 meeting.

         After a public hearing on August 26, 2015, the Board found:

The [Lime Lounge's] conditional use permit should be amended to expand condition #4 of the conditional use permit granted on August 24, 2011 (ZON2011-00142). It is reasonable to clarify this condition to state that any outdoor sound or music on the patio shall be limited to levels that would be considered background auditory in nature and shall be in accordance with a type "E" sound permit.
Granting the amended conditional use permit with conditions would be consistent with the intended spirit and purpose of the zoning ordinance and in harmony with the essential character of the neighborhood. This is an appropriate location for a tavern use, as it is located in the downtown area, which contains a mix of uses including taverns and restaurants. The impact of the tavern with an outdoor patio would be minimal so long as any outdoor sound or music on the patio shall be limited to levels that would be considered background auditory in nature and shall be in accordance with a type "E" sound permit. Furthermore, any noise generated by patrons using the patio must be kept to a level in compliance with article IV of chapter 42 of the city code pertaining to noise control. If the zoning enforcement officer determines at any time that the operation of the business again exhibits a pattern of violating the conditions set forth in the conditional use permit, the zoning enforcement officer may apply to the Board to reconsider or revoke the conditional use permit.

         Consistent with its findings, the Board amended Lime Lounge's CUP by written order on August 31, 2015:

WHEREFORE, IT IS ORDERED that the conditional use permit granted on August 24, 2011 (ZON2015-00142) for a tavern selling wine, liquor, and/or beer, which allows use of the 42-foot by 39-foot (1638 square feet) building as a tavern with a 17-foot by 39-foot (663 square feet) patio to the west of the building for outdoor service, where the zoning enforcement officer has determined that its operation has become a nuisance for surrounding residents and tenants, is amended, as follows:
. . . .
(4) Live outdoor music on any patio shall be limited to non-amplified performances. Any outdoor sound or music on any patio shall be limited to levels that would be considered background auditory in nature and shall be in accordance with a type "E" sound permit.
. . . .
(7) The conditional use permit shall be subject to further amendment or revocation if the zoning enforcement officer determines that the operation of the business becomes a nuisance or exhibits a pattern of violating the conditions set forth in the conditional use permit.

(Emphasis added.)

         On September 3, 2015, Lime Lounge was issued a type "E" permit.

         On October 16, 2015, Lime Lounge received notice from the zoning enforcement officer that it was using speakers on the patio without the required sound permit and the Board would reconsider its CUP at its November 18th hearing.

         At that November 18, 2015 hearing, the Board was informed that a type "E" permit had been issued to Lime Lounge. Consequently, the Board did not reconsider the CUP. However, at the hearing Lime Lounge's landlord[1] stated in part,

So first of all, we believe that regardless of whether they had issued a sound permit, the sound is still a problem. There's still complaints.
At the very least, allowing outdoor amplified music should simply be disallowed with this conditional use permit. This is the request from the building owner.
Additionally, I don't know if it's within your bounds today to address, but it appears that we have a problem with the sound emanating from inside the building to neighboring businesses. And, again, this is not a neighboring business that shares the same wall. There's a two-feet difference to allow dissipation of sound, and then it's got to go through that wall, and it is so loud it competes with their jukebox.
I just talked with . . . the manager at the neighboring tavern, and it continues to be a problem, not on a daily basis, but on a regular basis.
And we have no problem with the City of Des Moines enforcement staff or the Zoning Board taking action, whatever action you feel necessary, to nip this in the bud.
At the very least, we support the City recommendation to eliminate the outdoor sound; however, I don't know what kind of sound system they have in there. I'm unfortunately not sure that this alone is going to take care of this matter, but we thought that it's important at this point. The landlord is tired of the complaints, tired of the appearances in front of Board.
You've seen the attitude of the Applicant. He is adversarial with the landlord, and we want a tenant in there that respects its neighbor and gets along with everybody.
Thank you.

         Less than three months later the zoning enforcement officer took further action. On February 4, 2016, Lime Lounge received the following notice from the zoning enforcement officer:

On August 24, 2011 the [Board] approved a conditional use permit for [Lime Lounge] to be used as a tavern/bar. The conditional use permit is subject to amendment or revocation if the zoning enforcement officer determines that the operation of the business becomes a nuisance.
It has determined the sound emanating from the Lime Lounge and the patio constitutes a noise disturbance and prohibited pursuant to section 42-252 of the Municipal Code of the City of Des Moines. The noise disturbance ...

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