by Eric Christianson
Shop N Save v. City of Des Moines Board of Adjustment
(Iowa Court of Appeals, January 24, 2018)
Note: this is a separate case from Shop N Save v. City of Des Moines Zoning Board of Adjustment decided in August of 2017 year. Although both permits were denied at the same ZBA meeting citing much of the same evidence, they concern separate Shop N Save locations.
Shop N Save operates a convenience store located on Martin Luther King Jr. Parkway in Des Moines. As a limited food / retail sales establishment, it may derive no more than forty percent of its gross sale receipts from the sale of liquor, wine, beer, and tobacco products. In March 2015, Shop N Save applied for a conditional use permit to operate as a liquor store, which would eliminate the store’s limit on gross sales receipts from the sale of those products.
At the zoning board of adjustment hearing held in April 2015, city staff recommended denial of the permit, and neighbors testified of crime and nuisance issues associated with liquor sales at the location. The board also noted the close proximity of the liquor store to residential property.
Based on this testimony and the proximity to residential uses, the board voted to deny the permit.
In May of 2015 Shop N Save appealed to district court arguing that the board illegally denied the permit. The district court affirmed the decision finding that the board had relied on substantial evidence to deny the permit. Shop N Save appealed again to the Iowa Court of Appeals.
The Court of Appeals examined the case to determine if the Zoning Board of Adjustment acted within its authority in denying the permit.
According to the City of Des Moines’s zoning ordinance a conditional use permit must be show to conform to the following criteria:
- The business conforms with [zoning restrictions].
- The proposed location, design, construction and operation of the particular use adequately safeguards the health, safety and general welfare of persons residing in the adjoining or surrounding residential area.
- The business is sufficiently separated from the adjoining residential area by distance, landscaping, walls or structures to prevent any noise, vibration or light generated by the business from having a significant detrimental impact upon the adjoining residential uses.
- The business will not unduly increase congestion on the streets in the adjoining residential area.
- The operation of the business will not constitute a nuisance.
Failure to comply with any one of these conditions is fatal to the application.
Shop N Save argues that the denial was not supported by substantial evidence because “only four individuals” spoke against the permit, and all of the issues raised took place when the store was under previous ownership.
The court disagrees, finding that the testimony of the neighbors in addition to an additional email from the neighborhood association were substantial evidence that issuing the permit could create a nuisance. The court states that Shop N Save’s assertions that things would be better in the future could have reasonably been accepted by the board, but they were not and that is within the board’s discretion.
Because the ZBA’s ultimate decision was supported by substantial evidence. The boards decision is affirmed.