from the Iowa District Court for Polk County, Karen A.
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.
DeSmet, Assistant City Attorney, Des Moines, for appellant.
N. Fautsch of The Weinhardt Law Firm and David W. Nelmark of
Gislason & Hunter LLP, Des Moines (until withdrawal), for
by Potterfield, P.J., and Bower and Greer, JJ.
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
Background Facts and Proceedings.
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
(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.
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. The amended CUP included the following
(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
(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.
Pantry has never been cited for a violation of the conditions
of its CUP or amended CUP.
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
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.
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
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.
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."
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
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 ...