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LLC v. City of Des Moines Zoning Board of Adjustment

Court of Appeals of Iowa

September 25, 2019

S & A 786, LLC d/b/a DOWNTOWN PANTRY, Plaintiff-Appellee,
v.
CITY OF DES MOINES ZONING BOARD OF ADJUSTMENT, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.

         The Zoning Board of Adjustment of the City of Des Moines appeals after the district court sustained the writ of certiorari by which S & A 786, LLC challenged the legality of the revocation of its conditional use permit. AFFIRMED.

          Luke DeSmet, Assistant City Attorney, Des Moines, for appellant.

          David N. Fautsch of The Weinhardt Law Firm and David W. Nelmark of Gislason & Hunter LLP, Des Moines (until withdrawal), for appellee.

          Heard by Potterfield, P.J., and Bower and Greer, JJ.

          BOWER, Judge.

         The Zoning Board of Adjustment of the City of Des Moines (Board) appeals after the district court sustained the writ of certiorari by which S & A 786, LLC, doing business as Downtown Pantry (Pantry), challenged the legality of the Board's revocation of its conditional use permit (CUP). Because we agree with the district court there is not substantial evidence to support the Board's finding the Pantry's operation had created a nuisance and the revocation of the CUP was arbitrary and capricious, we affirm.

         I. Background Facts and Proceedings.

         The Pantry operates a business selling food and alcoholic beverages under a CUP originally issued in 2010. After the Pantry moved to its present location at the intersection of Sixth Avenue and Walnut Street, Des Moines, the Board issued a new CUP on November 26, 2013:

DECISION AND ORDER
WHEREFORE, IT IS ORDERED that the appeal for a Conditional Use Permit for a business selling wine, liquor, or beer, to allow use of the property for a "limited food/retail sales establishment", where no more than 40% of revenue would be allowed to be derived from the sale of liquor, wine, beer, and tobacco products, is granted subject to the following conditions:
(1) Any liquor or wine available for sale shall be kept within a maximum 12-foot long–cabinet located behind the counter where it is accessible only to store employees,
(2) Any beer available for sale shall be kept within a maximum 4-foot wide cooler or display.
Furthermore, as a limited food sales establishment, no more than 40% of revenue would be allowed to be derived from the sale of wine and beer and any sale of liquor, wine, and/or beer shall be accordance with a liquor license obtained through the Office of the City Clerk as approved by the City Council. The Conditional Use Permit shall be subject to 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.
. . . .
(5) The conditional use permit is subject to amendment or revocation if the operation of the business becomes a nuisance or exhibits a pattern of violating the conditions set forth in the conditional use permit.
(6) If the zoning enforcement officer determines at any time that the operation of such a business 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 the issuance of the conditional use permit for such business. A copy of such application and notice of the hearing before the board on such application shall be provided to the owner of such business at least 30 days in advance and shall also be provided to all owners of record of property within 250 feet of the subject property. If the board finds that the operation of such business exhibits a pattern of violating the conditions set forth in the conditional use permit, the board shall have the authority to amend or revoke the conditional use permit.

         The Pantry was compliant with its CUP and, on May 4, 2016, the Board unanimously approved the Pantry's request to amend the CUP, which allowed an expanded display area for alcoholic liquor and wine.[1] The amended CUP included the following conditions:

(6) The business shall institute a strict no loitering policy, conspicuously post one or more "No Loitering" signs, and cooperate with police in addressing any loitering on the premises.
(7) 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.
(8) Any renovation on the site shall be in compliance with all applicable building and fire codes, with issuance of all necessary permits by the Permit and Development Center.
(9) If the Zoning Enforcement Officer determines at any time that the operation of such a business becomes a nuisance, exhibits a pattern of violating the conditions set forth in the Conditional Use Permit, or violates the requirements of City Code Section 134-954(c), the Zoning Enforcement Officer may apply to the Board to reconsider the issuance of the Conditional Use Permit.

         The Pantry has never been cited for a violation of the conditions of its CUP or amended CUP.

         On October 16, 2017, Neighborhood Inspection Zoning Administrator SuAnn Donovan sent a letter to the Pantry's owners, Shahid and Aileen Mahmood, stating she was seeking a reconsideration of the CUP because the business had become a nuisance:

Reports from the City of Des Moines Police Department, security guards with the Financial Center and area residents [cite] loitering, alcohol sales to intoxicated persons and criminal behavior and patrons causing problems for the people in the area and residents in the Fleming Building which create an attractive nuisance in the neighborhood.

         Attached to the letter was Donovan's application for rehearing, which was to be heard at the November 15 Board meeting. That notice indicated the application alleged "the conduct of the business has become a nuisance to the surrounding neighborhood."

         In response to the Pantry's owners' requests for a meeting with Donovan, Donavan wrote to their attorney:

I am all about reaching a compromise and in most cases we can work toward a mutually beneficial outcome. In this case the sale [of] alcohol in this location is the cause of the resulting nuisance behavior in the area. I see no conditions that would allow the alcohol sale and eliminate the resulting nuisance. Therefore, we have no room for negotiation and a meeting would be fruitless.

         At the Board meeting, Donovan presented several exhibits, including a letter from the Des Moines Downtown Chamber, which Donavan summarized as objecting to the "clientele" of the Pantry, and neighboring businesses objecting to the concentration of persons from the nearby homeless shelter sitting on benches at the corner. She offered a list of police reports "to the general vicinity" where she asserted "we have people hanging around that area panhandling, harassing people, passing out. All sorts of bad behavior in that area."

         The attorney for the Pantry addressed the Board and argued the Pantry was being unfairly and unreasonably blamed for the criminal activity taking place in a problematic area of the city:

So today I would ask you to consider what role the Downtown Pantry is playing in the criminal activity that's taking place in this part of Downtown.
Because if you're familiar with downtown Des Moines, Sixth and Walnut between Third and Court and Eighth and Walnut, which is what the maps that the police have provided us with this problematic area, that, I would consider, and I think most would consider, to be the central hub of downtown Des Moines. People coming and going. The DART bus station, the new Hy-Vee, large office buildings. So where more ...

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