Posted by: Patricia Salkin | August 2, 2017

IA Appeals Court Upholds Board’s Denial of Conditional Use Permit

The owner of a Des Moines convenience store applied for a conditional use permit (CUP) that would allow the business to sell wine and beer. After hearing from the owner’s attorney and neighbors in opposition, the city’s zoning board of adjustment denied the application. The district court affirmed the board’s denial, and the store owner appealed. On appeal, the owner argued the store was “legally entitled” to a CUP because: the record did not support the district court’s reasons for affirming the board’s decision, and the court failed to consider whether imposing reasonable conditions on the operation of the business would have ensured compliance with the city ordinance.
Shop N Save first argued it was legally entitled to a CUP due to the insufficiency of the evidence supporting the district court’s fact findings. Here, the board concluded Shop N Save did not establish that the proposed “operation” of “selling beer and wine at this location would be consistent with the intended spirit and purpose of the Zoning Ordinance” or the “essential character” of the neighborhood. Additionally, the court determined that Shop N Save did not meet its burden to show it could satisfy the requirement that noise generated by the business would be sufficiently insulated to protect adjoining residences.
Shop N Save next contended that the problem of individuals making noise on the property could have been addressed through conditions on the CUP, such as no-loitering policies, signage, and enforcement. The court found this argument unavailing, however, because while Section 134-954(b) of the Des Moines municipal code set forth the board of adjustment “may” impose “reasonable conditions” on the operation of the business before granting a CUP, it did not mandate the board impose conditions when it was appropriate to outright deny a CUP. Since the court found the board’s decision was based on substantial evidence, it upheld the district court’s decision affirming the board’s denial of the CUP.
Shop N Save Food LLC v City of Des Moines Zoning Board of Adjustment, 2017 WL 3279149 (IA App. 8/2/2017)

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