Court of Appeals affirms ZBA’s denial of liquor permit

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:

  1. The business conforms with [zoning restrictions].
  2. 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.
  3. 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.
  4. The business will not unduly increase congestion on the streets in the adjoining residential area.
  5. 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.

Board of Adjustment established record sufficient to support denial of conditional use permit

by Gary Taylor

A-Line Iron & Metals, Inc. v. City of Cedar Rapids Zoning Board of Adjustment
(Iowa Court of Appeals, November 10, 2010)

A-Line Iron & Metals, Inc. filed a petition for a conditional use permit with the city of Cedar Rapids, seeking to operate a business to recycle scrap metal and iron (meeting the definition of “salvage yard” under the city’s zoning code).  The location was zoned I-2, “General Industrial Zone.” Salvage yards seeking to locate in I-2 must receive a conditional use permit, and the request must go through the city planning commission for review and recommendation prior to being heard by the zoning board of adjustment (ZBA).
 
The city’s Community Development department prepared a staff report for the planning commission recommending that the petition could be approved if certain conditions were fulfilled. The report found the requested conditional use was in accord with the future land use designation for the site. The planning commission recommended approval, subject to certain conditions.

Prior to the ZBA hearing, twenty-seven written complaints from nearby property owners were filed with the ZBA.  These written complaints, and the complaints voiced at the hearing, generally revolved around concerns over noise and increased truck traffic.  The attorney for a nearby radio station pointed out that on the future land use map the property was designated “commercial/industrial,” and salvage yards were not permitted in this category.  When asked about this issue at the ZBA hearing the city planner acknowledged the proposed use was not in accord with the future land use map, but expressed the opinion that “when the future land use map was drafted it was an oversight by the technical committee as it should have been shown as general industrial because that’s exactly what the property is for.”

The ZBA denied the conditional use permit.  No written findings of fact were filed by the ZBA; however, extensive minutes were recorded and approved.  In the minutes was a nearly-verbatim comment by the vice chair of the ZBA:

I . . . welcome new employees and new businesses to Cedar Rapids. This is very complicated and a lot of objectors so I went to the book, there is no question that in this district you have the right to apply for a conditional use of a salvage yard . . . . However, I would go to what I would call the three Cs. As I go back into the book here and look at the three Cs it was pointed out that I would just call them consistency, or consistent character, and compatible and as I look at this and as much as I would like to see a new business and new employees, I would say in my opinion we don’t have consistency with the land use. We are out of character for the neighborhood and being out of character it lacks the compatibility that I would like see . . . .  

A-Line filed a petition with the district court.  The district court found the minutes, the transcript of the hearing, and the documents presented at the hearing provided sufficient record to review the ZBA decision.  The district court found the reference to the “three C’s of consistency, character, and compatibility” were clearly a reference to the section of the city’s municipal code that sets forth criteria for approving conditional use permits.  The court determined that the ZBA had considered each of the standards in the code, even though each standard was not specifically discussed.  The court concluded there was substantial evidence in the record to support the ZBA decision.  A-Line appealed the district court decision to the court of appeals.

The court of appeals began by reciting the following principles found in Iowa caselaw regarding the need for ZBAs to develop adequate records of their proceedings:

  • Boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding.
  • It is sufficient if a board substantially complies with this requirement.
  • There is substantial compliance if the rule has been followed “sufficiently so as to carry out the intent for which it was adopted,” which is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.”
  • The reviewing court may determine substantial compliance by considering the board’s decision in the context of the meeting where the vote was taken as well as the views expressed by board members during the meeting.

The court of appeals concluded that the ZBA’s findings were sufficiently recorded so as to permit a court to review those findings. The minutes of the meeting and the transcript from the meeting clearly showed the ZBA denied the petition because the intended use of the property was not consistent with the use of nearby property, did not match the character of the neighborhood, and was not compatible with surrounding property. After the city planner advised the ZBA that the conditional use was not consistent with the future land use map, albeit due to an oversight, the vice chair of the ZBA commented that “in my opinion we don’t have consistency with the land use . . . are out of character for the neighborhood, and . . . it lacks compatibility.” The ZBA then proceeded to vote to deny A-Line’s conditional use application.

A-Line asserted the record did not support the denial because it showed that the ZBA addressed only three of the seven standards required for granting a conditional use permit.  The court of appeals pointed out that under the city’s code a conditional use permit can only be granted if all seven of the standards are met, and concluded that the ZBA considered the standards sufficiently to determine that three (those addressing consistency, character, and compatibility) were not met. Thus, addressing the other four standards would be unnecessary.

Finally, A-Line contended that the objectors raised only “generalized, unsubstantiated and speculative concerns that could not rise to the level of substantial evidence.” Noting that expert testimony is generally not required, and a ZBA may rely on anecdotal reports and “commonsense inferences drawn from evidence relating to other issues such as use and enjoyment, crime safety, welfare, and aesthetics to make a judgment,” the court of appeals concluded that substantial evidence existed to support the conclusion that the proposed use would not be consistent with the intent and purpose of the future land use policy plan.

Archives

Categories