Shop N Save v. Board of Adjustment

IN THE COURT OF APPEALS OF IOWA
No. 17-0536
Filed January 24, 2018
SHOP N SAVE LLC d/b/a SHOP N SAVE #1,
Plaintiff-Appellant,
vs.
CITY OF DES MOINES ZONING BOARD OF ADJUSTMENT,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.
Shop N Save LLC argues the City of Des Moines Zoning Board of
Adjustment acted illegally in denying its application for a conditional use permit to
operate a liquor store. AFFIRMED.
Alfredo Parrish and Adam C. Witosky of Parrish, Kruidenier, Dunn, Boles,
Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.
Michelle Mackel-Wiederanders, Assistant City Attorney, for appellee.
Heard by Doyle, P.J., and Tabor and McDonald, JJ.
2
DOYLE, Presiding Judge.
Shop N Save LLC (Shop N Save) filed a certiorari action challenging the
decision of the City of Des Moines Zoning Board of Adjustment (Board) denying it
a conditional use permit (CUP) to operate a liquor store. The district court found
substantial evidence supported the Board’s denial of the CUP and affirmed. On
appeal, Shop N Save argues the Board acted illegally in denying the CUP.
Because substantial evidence supports the district court’s decision, we affirm.
I. Background Facts and Proceedings.
This appeal concerns a Shop N Save convenience store located on Martin
Luther King Jr. Parkway in Des Moines. The store operated as a limited food/retail
sales establishment, which 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 CUP to operate as a liquor store, which would eliminate
the store’s limit on gross sales receipts from the sale of those products.
The Board considered Shop N Save’s CUP request at an April 2015
meeting. The district court summarized the evidence presented:
A City staff member issued a report recommending the denial of a
permit for the Shop to operate as a liquor store and proposed a
permit be issued allowing [Shop N Save] to continue to operate as a
limited food/retail establishment. In addition, two residents living in
close proximity to [Shop N Save] spoke in opposition of the issuance
of a liquor store permit citing ongoing problems with noise, crime,
and other concerns. Specifically, several residents spoke about
[Shop N Save]’s property being littered with trash, liquor, and beer
encroaching on the surrounding properties, windows rattling from
loud music and other disturbances in the late hours of the morning,
public urination, physical altercations, narcotics transactions, public
intoxication, and trespassing. All of these issues occurring with
[Shop N Save] having a more restricted sale of alcohol as a limited
food/retail establishment. It was even reported young children had
witnessed the instances of public urination on [Shop N Save]’s
3
premises. Numerous written comments were also submitted by
neighbors in opposition of the liquor store permit, citing many of the
same concerns and issues set forth previously. In addition, a
neighborhood association adjacent to [Shop N Save] called Prospect
Park voiced concerns for the granting of such a permit, noting the
disruption liquor stores pose to residential neighborhoods.
The Board found Shop N Save failed to satisfy the criteria necessary for a
liquor store CUP. In its April 28, 2015 decision and order, the Board specifically
found,
The subject property is in very close proximity to single family
residential uses, as there is a residential property 45 feet to the north,
0 feet to the east, and 12 feet to the south. Thus, occupying the
premise with a liquor store would not adequately safeguard the
health, safety and general welfare of persons residing in the
adjoining and surrounding residential area. Testimony provided by
neighbors during the hearing, and concerns raised by the Prospect
Park Neighborhood Association in a letter to the Board,
demonstrated that the sale of alcoholic liquor on the premise recently
and in the past has created a nuisance situation, including noise,
trash and safety concerns.
The Board denied Shop N Save’s application for a liquor store CUP.
In May 2015, Shop N Save petitioned for a writ of certiorari in the district
court. See Iowa Code § 414.15 (2015). It argued the Board illegally denied it a
liquor store CUP and asked that the court order the Board to issue the CUP.
Following a November 2016 hearing, the district court found substantial evidence
supported the Board’s decision and affirmed its decision to deny Shop N Save the
CUP. See id. § 414.18. Shop N Save appeals.
II. Scope and Standard of Review.
The district court may sustain a writ of certiorari where an inferior tribunal
exercising judicial functions acts illegally. See Iowa Rs. Civ. P. 1.1401, 1.1411. A
decision is illegal if substantial evidence does not support it. See Bowman v. City
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of Des Moines Mun. Hous. Agency, 805 N.W.2d 790, 796 (Iowa 2011). Evidence
is substantial if it “would be deemed sufficient by a neutral, detached, and
reasonable person, to establish the fact at issue when the consequences resulting
from the establishment of that fact are understood to be serious and of great
importance.” Iowa Code § 17A.19(10)(f)(1).
On appeal of a certiorari action, we review the district court’s ruling for the
correction of errors at law. See Bowman, 805 N.W.2d at 796. The court’s action
has the effect of a jury verdict. See Wells v. Dallas Cty. Bd. of Adjustment, 475
N.W.2d 680, 682 (Iowa Ct. App. 1991). Its fact findings are binding if a reasonable
mind would accept the evidence as adequate to reach the same finding regardless
of whether it could support contrary inferences. See id. We construe the court’s
findings broadly and liberally, and where ambiguous, we construe the findings to
uphold—rather than defeat—the trial court’s judgment. See id.III. Discussion.
The Board shall grant a CUP only if the business establishes 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.
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Des Moines, Iowa, Municipal Code § 134-954(b). “The failure to satisfy even one
of the ordinance’s conditions is fatal to a permit application.” W & G McKinney
Farms, L.P. v. Dallas Cty. Bd. of Adjustment, 674 N.W.2d 99, 103-04 (Iowa 2004).
Shop N Save has the burden of proving all of these conditions were satisfied. See
id.The Board denied Shop N Save the liquor store CUP based on the store’s
proximity to single family residential uses, which it determined “would not
adequately safeguard the health, safety and general welfare of persons residing in
the adjoining and surrounding residential area.” The Board also noted concerns
voiced by residents of the area and the neighborhood association concerning the
nuisance the sale of liquor created in the past, “including noise, trash and safety
concerns.” The district court found substantial evidence supported the Board’s
decision:
At the hearing, multiple neighbors cited a plethora of disturbances
and nuisances the sale of liquor by [Shop N Save] has caused. The
property owners directly adjacent to [Shop N Save]’s premises
recounted instances of public urination, violence, public
drunkenness, and other disturbances in the late hours of the morning
while [Shop N Save] has been in operation. Moreover, the court finds
it compelling not a single party, other than [Shop N Save], spoke in
favor of granting the liquor store permit.
Based on the “overwhelming evidence” before the Board, the district court found
denying Shop N Save’s application was “the only feasible option.”
Shop N Save argues there is insufficient evidence to support a finding that
issuance of a liquor store CUP will create a nuisance.1 Specifically, it claims the
1
Because Shop N Save has the burden of proving all grounds for issuing the CUP, it also
makes arguments relating to the section 134-954(b)(2) requirement concerning “the
health, safety and general welfare of persons residing in the adjoining or surrounding
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Board relied on the “unsupported assumption” that imposing reasonable conditions
on the store’s operation would not curb the nuisance activity. 2 Shop N Save also
argues that “only four individuals” opposed issuing the permit and their opposition
was the result of problems that arose under the prior owner.3
We find substantial evidence supports the findings that issuing Shop N Save
a CUP to operate as a liquor store would create a nuisance. Two neighbors of the
Shop N Save attended the Board’s meeting to speak in opposition to issuing the
CUP. They cited the amount of trash generated as a result of the store and
complained the trash came onto their property. There were also complaints
concerning the noise the Shop N Save attracted causing their windows to rattle
and Shop N Save customers urinating in public. Loitering was a concern, with one
neighbor explaining that customers waited for the Shop N Save to open and would
sit in the grass or stand behind the building to drink. In a written complaint, one
neighbor cited problems of “trash, drunkenness, criminal behavior, vandalism,
shootings, [and] drug dealing” existed with the Shop N Save’s limited liquor sales
and opined that “[e]asier access to alcohol will make it worse.” Another echoed
residential area” and the section 134-954(b)(3) requirement concerning noise, vibration,
and light. Because our finding that Shop N Save failed to meet its burden of showing the
CUP would not create a nuisance is dispositive, we need not address the sufficiency of
the evidence relating to the other requirements of section 134-954(b).
2
In the same order denying Shop N Save’s application for a liquor store CUP, the Board
reissued a CUP allowing Shop N Save to continue to operate as a limited food and retail
sales establishment, but with certain conditions. Those conditions include requiring Shop
N Save to close from 12:00 a.m. to 6:00 a.m. daily, eliminate signs advertising the sale of
wine or beer that are visible outside of the building, prohibit loitering, provide litter and
trash receptacles inside and outside the premises, and illuminate parking areas provided
to customers. Shop N Save argues that imposing these same conditions on a liquor store
CUP would eliminate the nuisance concerns.
3
Shop N Save’s ownership had purportedly changed sometime in the month leading up
to the Board’s meeting.
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this sentiment. In an email to the Board, the neighborhood association detailed
additional concerns about issuing Shop N Save a liquor store CUP:
1. The store is too close to the Freedom for Youth Center at
2301 Hickman. Freedom for Youth is a ministry offering education,
training for employment and leadership, and aspect of faith. In short,
[its] purpose is to help youth develop high moral standards and to
contribute to society.
2. They had been shut down previously for selling synthetic
marijuana. We don’t believe that they have completely “turned
around.”
3. The owner lives out of town. He is unlikely to be overly
concerned about his store’s effect on the neighborhood.
4. The stores are located in a residential area. The city
doesn’t need liquor stores in residential areas. They should be
restricted to business areas, and rezoning the area does not change
its essential nature, which is residential.
5. The former Oasis, now know[n] as the Prospect Park
Market, was forced to stop selling any alcohol products a month or
two ago. The impact has been dramatic: no more gun shots at night,
less litter, more people going in to actually buy a few groceries,
snacks, pop, and such because they aren’t afraid to go there. No
more scary people in the area, slower traffic on Payne. No obvious
drug trafficking in the parking lot. Getting alcohol out of the Stop N
Saves will have similar affects.
In contrast, no one spoke in favor of granting Shop N Save a liquor store CUP.
Shop N Save claims the nuisance concerns were resolved with a change in
ownership. At the Board meeting, it claimed the new owner would make changes
and “does intend to . . . make the building look a lot better” and that “marked
changes” would occur “pretty rapidly.” However, Shop N Save failed to provide
the Board with evidence to back up these aspirational claims. Rather, when the
Board asked one of the neighbors about any changes that had occurred since the
transfer of ownership, she stated she had not noticed any improvement. Is it
possible that a reasonable person might conclude that the Shop N Save would
make the adjustments necessary to alleviate the nuisance concerns that arose
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under the previous owner? Yes. But the question before us is not whether there
is evidence to support a finding opposite the one made by the Board; the question
is whether the evidence supports the finding the Board made. See Bush v. Bd. of
Trs., 522 N.W.2d 864, 866 (Iowa Ct. App. 1994). It does. Because we agree that
substantial evidence supports the Board’s decision and the Board did not act
illegally in denying Shop N Save’s application for a liquor store CUP, we affirm the
district court’s decision.
AFFIRMED.