Posted by: Patricia Salkin | January 24, 2018

IA Appeals Court Upholds Denial of CUP for Shop N Save LLC to Operate a Liquor Store

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.

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