Posted by: Patricia Salkin | October 13, 2019

IA Appeals Court Finds Board’s Decision to Revoke CUP to a Business Selling Food and Alcoholic Beverages was Not Supported by Substantial Evidence

This post was authored by Matthew Loeser, Esq.

Downtown Pantry operated a business selling food and alcoholic beverages under a CUP originally issued in 2010. After the Pantry moved to its present location in Des Moines, the Board issued a new CUP. The Pantry was compliant with its CUP and, in 2016, the Board unanimously approved the Pantry’s request to amend the CUP, which allowed an expanded display area for alcoholic liquor and wine. In 2017, Despite the Pantry has never been cited for a violation of the conditions of its CUP or amended CUP, the Neighborhood Inspection Zoning Administrator SuAnn Donovan sent a letter to the Pantry’s owners, Shahid and Aileen Mahmood, stating she was seeking a reconsideration of the CUP because the business had become a nuisance. The Board voted unanimously to revoke the Pantry’s CUP, and the district court reversed, holding the Board’s finding that the Pantry’s operation had created a nuisance was not supported by substantial evidence.

The Pantry argued that to establish a nuisance, there needed be evidence that the Downtown Pantry was actually causing the problems resulting in the calls. It further alleged Hy-Vee was located within two-tenths of a mile and had a substantially larger selection of alcoholic beverages, and more than a dozen bars and restaurants served alcohol within a half mile of the Pantry. Additionally, the Pantry had a policy and store signage prohibiting loitering. In response to one officer’s claim of “an enormous uptick” in problems when the Downtown Pantry opened, the court found, “the significant increase in calls for police began in 2017, and Downtown Pantry has operated its business in the location since 2013.”

The district court also noted that other factors contributed to the situation in the area and calls to the police, inclusive of: “the completion of the construction of the Sixth and Walnut intersection, the installation of benches, persons shoplifting narcotics from the Walgreens, the presence of the bus station two-tenths of a mile from the Pantry, foot traffic from a bus stop located across the street from the Pantry, the Hy-Vee two-tenths of a mile away, and the homeless shelter six-tenths of a mile away.” Accordingly, the court affirmed the district court’s holding that the Board’s revocation of the Pantry’s CUP was unreasonable, arbitrary, and capricious.

S & A 786, LLC v. City of Des Moines Zoning Board of Adjustment, 2019 WL 4678161 (IA App.  9/25/2019)

 


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