Posted by: Patricia Salkin | March 16, 2018

2018 ABA Land Use Institute set for Detroit April 19-20

2018 Land Use Institute
Agenda & Faculty


(All times are Eastern Standard Time)

University of Detroit Mercy School of Law, 651 East Jefferson Avenue, Detroit, Michigan

Download a printable pdf brochure with the complete schedule and other information

Thursday, April 19, 2018

1:00 p.m.    Registration

1:30 p.m.    Welcome – Phyllis L. Crocker, Dean, University of Detroit, Mercy School of Law; Robert H. Thomas, Damon Key Leong Kupckak Hastert, and Chair ABA Section of State and  Local Government Law,Honolulu, HI; Mayor Mike Duggan, City of Detroit, MI (Invited)

Course Overview – Mr. Schnidman

2:00 p.m.   Update on Planning, Land Use, and Eminent Domain – Moderator: Mr. Merriam; Panel: Mss. Agrimonti, and Rosenthal; Prof. Callies and Eagle; Messrs. Ackerman, Cope, Dalton and Gray

3:45 p.m.    Networking and Refreshment Break

4:00 p.m.     Ethical and Professionalism Considerations for the Land Use Practitioner and Government Lawyer – Moderator: Mr. Schnidman; Panel: Ms. Salkin and Mr. Brown

6:00 p.m.     Adjourn for the Day

6:30 p.m.      Welcome Reception  Held jointly with the ABA Section of State and Local Government Law and ABA Section of Public Contracts Conference and other co-sponsor organizations. Location: Clark Hill PLC, 500 Woodward Avenue, Suite 3500, Detroit.

Friday, April 20, 2018

8:00 a.m.         Continental Breakfast

8:30 a.m.         Federal Laws, Regulations, and Programs Affecting Local Land Use Decision Making – Moderator: Mr. Gowder; Panel: Mss. Agrimonti, Kellington, Powers and Rosenthal; Messrs. Cope, Dalton, Gray, Merriam, and Thomas

10:30 a.m.       Networking Break

10:45 a.m.    Annual Richard F. Babcock Faculty Keynote Address: “The Role of Planning and Law in Solving Homelessness” – Introduction by Mr. Schnidman; Speaker: Ms. Wendie Kellington; Response Panel: Ms. Rosenthal, Mr. Gray and Prof. Eagle

12:00 noon      Lunch Break (Sponsored On-Site Box Lunch)

Women in the Law Luncheon Session

(Co-Chairs Mss. Rosenthal and Salkin)

Young Practitioners Luncheon Session

(Co-Chairs Messrs. Merriam and Gowder)


Nuts and Bolts of Land Use Practice: Eminent Domain, Vested Rights and Regulatory Takings: Where Are We Now – Moderator: Mr. Thomas; Panel: Prof. Eagle; Messrs. Ackerman and Roston
Public Private Partnerships – Moderator: Ms. Chumbler; Panel: Messrs. Kasdin, and Marquez

Climate Change and Resilient Development – Moderator: Ms. Powers; Panel: Messrs. Gowder and Merriam

2:30 p.m.  Networking and Refreshment Break


Nuts and Bolts of Land Use Practice: Client Representation-Developer, Government and Citizen Groups – Moderator Mr. Thomas; Panel: Ms. Agrimonti; Mr. Kasdin

Autonomous Vehicles-Local Planning for Planes, Trains and Automobiles –Moderator: Mr. Gowder; Panel: Ms. Kellington; Mr. Merriam

Housing Supply and Affordability – Planning Alternatives and Legal Consequences – Moderator: Ms. Salkin; Panel: Prof. Callies, and Messrs. Gray and Marquez

4:15 p.m.        Networking Break

4:30 p.m.         The Land Use Issues Impacting the Fall and Rise of Downtown Detroit

Moderator: Ms. Massaron

Michael McLauchlan, Vice President for Government Relations, Ilitch Holdings, Detroit, MI

Jared Fleischer, Vice President of Government Relations, Quicken Loans, Detroit, MI

Maurice D. Cox, Director, Planning & Development Department, Detroit, MI

Response Panel:

Dennis W. Archer, Former Mayor, Detroit, MI; Former ABA President; Chairman Emeritus, Dickinson Wright PLLC, Detroit, MI; Chairman and CEO, Dennis W. Archer, PLLC, Detroit, MI

Neisen Kasdin, Former Mayor, Miami Beach, FL; Managing Partner, Akerman, Miami, FL

6:00 p.m.         Adjournment


6:30 p.m.         Optional Downtown Detroit Tour with Section of State and Local Government Law (Details to be Announced)


7:00 p.m.         Optional Dinner with Section of State and Local Government Law – Texas de Brazil, 100 Woodward Avenue (This is a ticketed event at $65/person.)


Total 60-minute hours of instruction: 11.5, including 2 hours of Ethics




Planning Chair (also on faculty)
Frank Schnidman, former Distinguished Professor of Urban and Regional Planning, and former John M. DeGrove Eminent Scholar Chair, Florida Atlantic University, Boca Raton, FL
Planning Co-Chair (also on faculty)
Patricia E. Salkin, Provost for the Graduate and Professional Division, Touro College, New York, NY




Alan T. Ackerman, Ackerman Ackerman & Dynkowski, P.C., Bloomfield Hills, MI


Lisa M. Agrimonti, Fredrikson & Byron, P.A., Minneapolis, MN


Dennis W. Archer, Former Mayor of Detroit (1986-1990 and 1994-2001); Former ABA President; Chairman Emeritus, Dickinson Wright PLLC, Chairman and CEO, Dennis W. Archer PLLC, Detroit


Christopher L. Brown, Deputy Law Director, Mansfield, OH


David Callies, Benjamin A. Kudo Professor of Law, University of Hawaii at Manoa, William S. Richardson School of Law, Honolulu, HI


Martha Chumbler, Carlton Fields Jorden Bert, Tallahassee, FL


Ronald S. Cope, Schain, Banks, Kenny & Schwartz, Ltd., Chicago, IL


Maurice D. Cox, Planning & Development Department, City of Detroit, Detroit, MI


Daniel P. Dalton, Dalton & Tomich, Detroit, MI


Steven J. Eagle, Professor, George Mason University School of Law, Arlington, VA


Jared Fleisher, Vice President of Government Affairs, Quicken Loans, Detroit, MI


W. Andrew Gowder, Jr., Austen & Gowder, Charleston, SC


Matthew S. Gray, Perkins Coie, San Francisco, CA


Neisen Kasdin, Akerman, Miami, FL


Wendie L. Kellington, Kellington Law Group PC, Lake Oswego, OR


Victor Marquez, The Marquez Law Group, San Francisco, CA


Mary Massaron, Plunkett Cooney, Detroit, MI


Michael McLauchlan, Vice President of Government Affairs, Ilitch Holdings, Detroit, MI


Dwight Merriam, Robinson + Cole, Hartford, CT


Erica L. Powers, Department of Geography & Planning, State University at Albany, Albany, NY


Deborah Rosenthal, FitzGerald Yap Kreditor, LLP, Irvine, CA


Howard Roston, Fredrikson & Byron, P.A., Minneapolis, MI


Robert H. Thomas, Damon Key Leong Kupckak Hastert, Honolulu, HI

This post was authored by Matthew Loeser, Esq.

Stratford Holding owned a 2156-square foot building at the corner of East Fourteenth Street and Cleveland Avenue, at which Santokh Singh Nagra operated a Shop N Save convenience store. Shop N Save operated as a “limited food sales establishment” in a location zoned as C-1, a neighborhood retail commercial district. In 2005, Shop N Save received a liquor license with the provision that its alcohol sales not exceed fifty percent of its gross receipts. In 2011, the city amended the ordinance to require a conditional use permit (CUP) for any limited food and retail sales establishments that wanted to sell alcohol. The city granted existing businesses until the end of 2013 to conform to these new requirements. In 2015, Stratford sought to rezone its property as a C-2 district, which the city council denied. The business then applied for a use variance and CUP for a limited food sales establishment wishing to sell beer, wine, and liquor. The Board voted to approve the CUP for a limited food retail sales establishment “selling beer and wine only subject to the staff recommendations.” Stratford sought a writ of certiorari in the district court, which affirmed the decision of the city’s board of adjustment.

On appeal, Stratford contended the district court erred in deciding the use-variance denial was not arbitrary and capricious without first considering the Board’s actions toward “similarly situated” applicants. Specifically, Stratford alleged that even if the Board’s denial was supported by substantial evidence, it still acted arbitrarily and capriciously because in other recent cases the Board granted variances when the applications were not supported by substantial evidence, or considered evidence “outside the scope” of Iowa Code section 414.12 and Des Moines Municipal Ordinance section 134-64. The court noted, however, that Stratford failed to cite any precedent for the notion that the Board’s denial of a variance, based on substantial evidence and complies with the city’s zoning ordinances, was illegal because the Board more liberal in applying the unnecessary-hardship exception to other applications. Here, the Board members found Shop N Save remained a viable business without the sale of the liquor; thus, Stratford failed to carry its burden in showing an unnecessary hardship. Accordingly, the district court’s holding was affirmed.

Stratford Holding v City of Des Moines, 2018 WL 739271 (IA App. 2/7/2018)

This post was authored by Matthew Loeser, Esq.

Petitioners, Larry and Susan Perkett, sought review of an order of the Land Use Board of Appeals (LUBA), which reversed the decision of a Jackson County hearings officer who had verified their application to continue their nonconforming use of their property as an auto yard business in an area zoned for exclusive farm use (EFU). In its decision, LUBA agreed with the respondant Morgan, an adjoining property owner, that the Perketts’ auto yard had not been a “lawful use” of the property, within the meaning of ORS 215.130(5), at the time that zoning was enacted. As such, LUBA held the property could not continue as a permissible nonconforming use.

On appeal, the Perketts contended that LUBA erred in construing ORS 215.130(5]. Specifically, they argued that LUBA erred when considering whether the Perketts’ use was unlawful with reference to compliance with dealer-licensing statutes. Morgan argued that the phrase “lawful use” required the Perketts to show “an activity that is lawful under all laws, not just land use laws.” Here, the court found that the legislature intended to narrow the term “lawful use” by reference to “lawful use of any building, structure, or land,” and the legislature gave context with reference to “enactment or amendment of any zoning ordinance or regulation.” Accordingly, the court found that a violation of business or occupational licensing laws becoming grounds to deny a land owner recognition of a right to continue an otherwise lawful, nonconforming use would be a sanction that the legislature did not provide or intend in the licensing statutes.

Finally, the court held that LUBA’s construction of “lawful use” to include dealer licensing as a requirement that “for some other reason must be satisfied for a use to be ‘lawful’,” was in error. The court determined that this construction suggested a broad reading of “lawful use” that was inconsistent with the legislative intent expressed in the distinctly different schemes of land use and business licensing. Here, ORS 215.130(5), which referred to the lawful use of buildings, structures, and land, did not refer to compliance with the dealer licensing statute. Therefore, the court held that LUBA erred in reversing the decision of the county hearings officer on the basis of a business licensing violation, and reversed LUBA’s order on that basis.

Morgan v Jackson County, 290 OR App. 111 (2/7/2018)

Hogan filed an application requesting that his property be rezoned from “Old Capital Green” to “General Commercial District” for the purpose of allowing the operation of a used auto sales business on the premises. The Jackson City Council passed an ordinance rezoning this property. Ben Allen, individually and in his capacity as President of Downtown Jackson Partners, Inc., filed a bill of exceptions in the Circuit Court of Hinds County, which sought a reversal of the City Council’s decision to rezone the property. The circuit court reversed the Jackson City Council’s decision, and the City appealed.
On appeal, the City contended that the circuit court lacked subject matter jurisdiction because “no proper and signed” bill of exceptions was filed as required by Section 11–51–75, and that Allen’s failure to file a valid bill of exceptions deprived the circuit court of subject matter jurisdiction. After reviewing the relevant legislative history, the court found that the Legislature never intended the signature requirement to be a jurisdictional prerequisite. Thus, the court concluded that although the bill of exceptions was a jurisdictional requirement for the circuit court to hear an appeal, imperfections in it speak to the adequacy of the record to decide the excepted issues rather than to the authority of the court to hear the appeal.
The City next alleged that Allen, as President of Downtown Jackson Partners, lacked standing to bring an appeal because he was not a “person aggrieved”, since Downtown Jackson Partners did not own, or have an interest in, property affected by the rezoning of the subject property. The record indicated that the subject property was located in the Old Capitol Green Mixed Use District, and under Subsection 708.03.04 of the City’s Zoning Ordinance, Downtown Jackson Partners had a direct role in regulating the development of the Old Capitol Green Mixed Use District. Allen claimed that Downtown Jackson Partners would be negatively impacted by the rezoning decision because the subject property would no longer be classified as Old Capitol Green Mixed Use District. As such, Downtown Jackson Partners would no longer be able to ensure that the property adhered to the Old Capitol Green Sustainable Design Guidelines and the Old Capitol Green Master Plan as provided in Subsection 708.03.04. The court therefore found that the circuit court did not abuse its discretion in finding that Allen, in his capacity as President of Downtown Jackson Partners, had standing.
Finally, the City argued that the property owner and lessor, who requested the rezoning, had a basic due process right to be joined or at least to have sufficient notice of the appeal. However, since the City failed to raise the due process argument in the circuit court, it was barred from raising the argument for the first time on appeal. Nevertheless, the court found this argument would still fail as the record indicated no effort on the City’s behalf to ensure that the property owner and lessor received notice of Allen’s appeal to the circuit court. Accordingly, the court affirmed the circuit court’s order reversing the City Council’s decision.
City of Jackson v Allen, 2018 WL 654055 (MS 2/1/2018)

This post was authored by Matthew Loeser, Esq.

At issue in this case was a property owned by Cajun 411, LLC., which formerly housed a strip club and a novelty shop that sold “adult merchandise.” Cajun 411 wanted to open a “family style” restaurant at this location and add a third floor rooftop with seating to the building. The City of New Orleans’s Comprehensive Zoning Ordinances allowed construction up to fifty feet in the French Quarter but the Vieux Carré Commission (VCC) Guidelines stated that rooftop additions on buildings less than three full stories in height were not recommended, and required the review of the VCC and the approval of the City Council. The VCC made a decision to “defer” its application to the New Orleans City Council, and Cajun 411 appealed. At the City Council’s meeting, it heard and granted Cajun 411’s appeal of the VCC’s failure to act on Cajun 411’s application. The Vieux Carré Commission Foundation (VCCF) filed this action seeking injunctive relief pursuant to La. R.S. 25:746(D). A TRO was issued by the district court enjoining Cajun 411, the City, and the City Council from taking any further action regarding a permit for construction of the third floor addition, which was then followed by the district court granting the preliminary injunction.
On appeal, the court first found that the City Council acted within the scope of its constitutional and statutory powers when it heard and ruled on Cajun 411’s appeal from the VCC’s deferral of its application back to the architectural subcommittee. Specifically, the Louisiana legislature, in La. R.S. 25:746, expressly granted authority to the council to hear appeals from the Commission. The VCCF further argued that the VCC’s deferral or failure to act on Cajun 411’s application was not appealable to the City Council because it was not a final decision or recommendation. This contention was rejected, however, as the statute explicitly provided that a concerned party could appeal the failure to act of a commission or an agency to governing body or authority which established it.
As to the preliminary injunction, the court found that there was no evidence in the record regarding what the trial court based its ruling on: that the “public trust” would suffer “immediate and irreparable injury, loss, damage or impairment” unless the City and the Council were enjoined from working out the final details with Cajun 411 for its proposed improvements and issuing a building permit for the same. After a review of the record, the court did not find any reason in support of the preliminary injunction being entered into to stop the City from issuing a building permit to Cajun 411. Accordingly, the court reversed the trial court’s judgment granting the VCCF’s motion for a preliminary injunction.
Vieux Carre Commission Foundation v City of New Orleans, 2018 WL 651668 (LA. App. 4 Cir. 1/31/2018)

This post was authored by Matthew Loeser, Esq.

The following post was authored by Matthew Loeser, Esq.

Plaintiff David Eliason desired to open a sexually oriented business that would sell videos and magazines. Pursuant to Rapid City Municipal Code (“RCMC”), sexually oriented businesses include adult-only bookstores, adult novelty shops and adult video stores. Mr. Eliason submitted an application for development review to the Planning Commission in order to obtain a conditional use permit. The Planning Commission approved the conditional use permit. BHT, a martial arts studio operating near the location of Mr. Eliason’s planned business, appealed the permit approval arguing that Mr. Eliason’s business should not have received a conditional use permit because BHT, which was within 1,000 feet of Mr. Eliason’s proposed location, was an “educational facility” under § 17.50.186(D). The Common Council voted to deny Mr. Eliason’s conditional use permit, and plaintiff appealed.
On appeal, plaintiff first argued that the City Code imposed an unconstitutional prior restraint on their First Amendment rights because they could not open their business without a conditional use permit. As applied, the court found the definition of educational facility in § 17.50.186(D)(1)(b) was not sufficiently “narrow, objective, and definite” as applied to plaintiff. This definition failed to provide guidance on what other facilities fell within its scope, other than specifying it “includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school.” Furthermore, due to the way the definition was written, the Rapid City government entities formed opposite interpretations. As such, the court held §17.50.186(D) (1)(b), as applied to plaintiffs, was an unconstitutional prior restraint.
Plaintiffs also argued that the definition of “educational facility” was unconstitutionally vague. As above, plaintiffs contended that the contrast between the interpretations of the City Council and the City Attorney and Planning Commission supported a finding that the ordinance was unconstitutionally vague. Here, in determining whether BHT was an educational facility, the record indicated that several Councilmembers prioritized “keeping the adult oriented businesses away from our children.” The court found, however, that these considerations were not in § 17.50.186(D)(1)(b). Thus, the court found plaintiffs were likely to prevail on the merits with respect to plaintiffs’ as-applied prior restraint and vagueness challenges. Based on this determination, the court determined that it did not need to analyze plaintiffs’ third argument regarding availability of alternative locations.

Because the court concluded plaintiffs established they were likely to prevail on certain First Amendment arguments, the court held plaintiffs had shown an injunction supported the public interest. Furthermore, since plaintiffs sought to carry out expression the First Amendment protected, and defendant did not provide an adequately substantiated amount for security, the court found no security was justified. Accordingly, the plaintiffs’ preliminary injunction motion was granted.

Eliason v City of Rapid City, 2018 WL 620481 (D. SD 1/29/2018)


This post was authored by Matthew Loeser, Esq.

Petitioners owned Tennessee Quick Cash, Inc., and purchased commercial property at which they would operate a business offering “flex loans” to consumers. The petitioners were denied a building permit because the Zoning Administrator concluded that “flex loans” constituted cash advances, and the property owners’ intended use therefore violated the requirement in the Metropolitan Nashville and Davidson County Code of Ordinances that cash advance, check cashing, or title loan businesses be at least 1,320 feet apart. Petitioners appealed to the Board of Zoning Appeals, which affirmed the decision of the administrator. The property owners then petitioned for certiorari review in Davidson County Chancery Court, which granted the writ and affirmed the Board’s decision.
On appeal, Petitioners first argued that the trial court applied the wrong standard when it reviewed the Board’s decision, and should not have afforded deference to the Board. The record reflected that the Zoning Administrator and the Board construed and applied the Code to the proposed “flex loan” business, in an attempt to determine which of the existing use classifications flex loans most resembled. As such, there was required to be a presumption of validity favoring the actions of a zoning agency when applying and interpreting its own ordinances. Thus, the trial court applied the court standard.
The Petitioners next contended that the Zoning Administrator erred in categorizing “flex loans” as most comparable to “cash advances”. Alternatively, Petitioners argued that the most appropriate classification under the Code was “financial institutions.” Here, however, Zoning Administrator, Bill Herbert, advised the Board that he came to the conclusion that “flex loans” were best categorized as “cash advances” for the purposes of applying the Code and were therefore excluded from the definition of “financial institution”. In making his decision, the Zoning Administrator noted that cash advance meant any building, room, space, or portion thereof where unsecured, short-term cash advances are provided, including those made against future pay checks, as regulated under Title 45, Chapter 17 of Tennessee Code Annotated. Pursuant to the Metropolitan Code, the Zoning Administrator was vested with the authority to classify land which had not been defined in the Code. The decision to classify “flex loans” as “cash advances” for the purposes contemplated by the Code was therefore supported by the evidence and was not arbitrary or unreasonable. Consequently, the judgment of the trial court was affirmed.
Brown v Metropolitan Government of Nashville and Davidson County, 2018 WL 522419 (TN App. 1/23/2018)

This case arose form a decision by Calumet City to deny Plaintiff Shaneka Dyson a business license to operate a banquet hall. Dyson, along with two of her businesses, Jump N’ Jam Inflatables, Inc. (“JNJ”) and The Atrium Venue, Inc., filed suit against the City and several of its officials, alleging that the City’s handling of her license application violated her federal and state equal protection and due process rights, as well as constituted a taking without just compensation.

In Dyson’s Class-of-One Equal Protection claim, Dyson alleged that city officials led her into believing that she could operate a banquet hall, but then thwarted those plans by revealing that the property was not zoned for that use, and by denying her special use and business license requests after she had spent roughly $150,000 to get her new business up and running. Here, the record indicated that there was a rational basis for the denial of Dyson’s business license and special use applications, as Dyson’s proposed business did not meet the City’s existing zoning requirements. Moreover, Dyson had not established that the ZBA’s vote on her special use application was out of the ordinary, or plead sufficient facts to show if there was any animus against her. As to Dyson’s substantive due process claim, the court found that even had the City’s decision been irrational, Dyson’s substantive due process claim would have failed anyway since she failed to establish an independent constitutional violation or show the inadequacy of state remedies to redress the deprivation. Here, the court noted that Dyson could have asserted an equitable estoppel claim against the City to address her license and permit issues, or asserted a state-law tortious interference claim.


The court also rejected Dyson’s procedural due process claim as complaint failed to allege that Dyson lacked notice of the hearings in which her applications were discussed and decided. She also failed to allege that the hearings she attended did not provide an opportunity to be heard. Moreover, the court found that grievance Dyson had about her application being held in limbo was a matter of local law. Lastly, Dyson argued that it “is axiomatic that a government body violates due process when it fails to follow the process itself has codified in law.” However, the court held that a state or municipality’s failure to follow its own rules did not give rise to a federal due process violation.


Next, Dyson’s taking claim alleged that the defendants had denied two of Dyson’s proposed uses for the property: a banquet hall and a youth venue. These allegations, however, did not show that Dyson was unable to use the property for any economically beneficial purpose. Moreover, the court held that the complaint failed to identify how the property was actually zoned and what uses were permitted under its current classification.

Dyson v City of Calumet City, 2018 WL 509961 (ND IL 1/23/2018)

Industrial Tower and Wireless, LLC (ITW) applied for a special use permit seeking to build a telecommunications tower. In support, ITW included a site analysis with maps to demonstrate that the tower height limits and setback requirements complied with the applicable Foster ordinances. Following the denial of its permit, ITW filed this action alleging a violation of the Federal Telecommunications Act of 1996 (“TCA”), and sought injunctive and other relief. Before the court was ITW’s Motion for Summary Judgment.
At the onset, the court noted that the TCA protections extended beyond providers of personal wireless services to others involved with telecommunications technologies, such as landowners and tower developers. Thus, ITW had standing to bring a TCA claim, notwithstanding the fact it was a site acquisition company and not a cell phone service provider. Having found standing, the court next addressed whether the Board’s decision denying ITW’s application to build a cell tower was supported by substantial evidence. Here, in the Findings of Fact and Legal Conclusions section where the Board set forth its denial, the Board failed to identify any facts upon which it made its conclusions. Instead, to Board merely provided a conclusory statement that recited its ordinance and Comprehensive Plan and generally referenced the entire record. Moreover, one of the Board’s stated reasons for denial, that the application was inconsistent with the plan, was contradicted by the Master Plan Decision of the Foster Planning Board, which approved the application and determined that the tower plan was “consistent with the Comprehensive Community Plan and had satisfactorily addressed the issues where there were inconsistencies in accordance with” state law. Accordingly, the court ordered the Board to grant ITW’s special use permit on its application for the proposed telecommunications tower.

Industrial Tower and Wireless, LLC v Esposito, 2018 WL 526334 (D. RI 1/22/2018)

Shop N Save LLC challenged the decision of the City of Des Moines Zoning Board of Adjustment which denied Shop N Save a conditional use permit (CUP) to operate a liquor store. Shop N Save petitioned for a writ of certiorari in the district court, which found that substantial evidence supported the Board’s denial of the CUP and affirmed. On appeal, Shop N Save alleged that the Board acted illegally in denying the CUP.
Here, 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.” On appeal, Shop N Save contended there was insufficient evidence to support a finding that issuance of a liquor store CUP would create a nuisance. According to the record, however, two neighbors of the Shop N Save attended the Board’s meeting and spoke in opposition to issuing the CUP – citing the amount of trash generated as a result of the store and complained that the trash came onto their property. Additionally, there were also complaints that the noise the Shop N Save attracted caused their windows to rattle, and that some Shop N Save customers had been urinating in public. In response, Shop N Save failed to provide the Board with evidence to back up its claims that it would resolve these concerns. As the court found substantial evidence supporting the Board’s decision, and because the Board did not act illegally in denying Shop N Save’s application for a liquor store CUP, the court affirmed the district court’s decision.

Shop N Save, LLC v City of Des Moines Zoning Board of Adjustment, 2018 WL 542387 (1/24/2018)

This post was authored by Matthew Loeser, Esq.

Older Posts »