IN THE COURT OF APPEALS OF IOWA
No. 18-0155 Filed February 6, 2019
LIME LOUNGE, LLC, and THUNDER & LIGHTNING, INC., Plaintiffs-Appellants,
vs.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF DES MOINES, IOWA, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
Lime Lounge, LLC, and Thunder & Lightning, Inc., appeal the revocation of
the conditional use permit issued by the zoning board. AFFIRMED.
George Qualley IV and Cornelius S. Qualley of Qualley Law, PLC, Des
Moines, for appellants.
Luke M. DeSmet, Assistant City Attorney, Des Moines, for appellee.
Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019). 2
DANILSON, Senior Judge.
Lime Lounge, LLC, and Thunder & Lightning, Inc. (hereinafter collectively
“Lime Lounge”) appeal the dismissal of their petition for certiorari issued by the
district court in Lime Lounge’s challenge to the revocation of the conditional use
permit (CUP) issued by the Zoning Board of Adjustment of the City of Des Moines
(Board). Lime Lounge raises numerous contentions that the Board’s revocation of
its CUP was procedurally flawed and illegal and that the district court’s review was
in error. We disagree and affirm.
I. Background Facts and Proceedings.
Lime Lounge operates a bar on East Grand Avenue in Des Moines, which
is authorized to sell alcoholic beverages at that location pursuant to an August 31,
2011 CUP. Lime Lounge’s original CUP provided:
WHEREFORE, IT IS ORDERED that the appeal for a conditional use permit for a business selling wine, liquor, and/or beer, to allow use of the 42-foot by 39-foot (1638 square feet) building as a tavern with a 17-foot by 39-foot (663 square feet) patio to the west of the building, is granted subject [to] the following conditions: (1) Any business shall have a main entrance oriented toward either East Grand Avenue or East 5th Street. (2) Any business selling liquor, wine, and/or beer shall operate in accordance with a liquor license obtained through the Office of the City Clerk as approved by the city council. (3) The business shall comply with article IV of chapter 42 of the city code pertaining to noise control. (4) Live outdoor music on any patio shall be limited to non- amplified performances. Any outdoor sound or music on any patio shall be limited to levels that would be considered background auditory in nature. (5) Litter and trash receptacles shall be located at convenient locations inside and outside the premises, and operators of the business shall remove all trash and debris from the premises and adjoining public areas on a daily basis. (6) Any renovation of the building must be in compliance with current building codes with issuance of any necessary permits by the permit and development center. 3
(7) The conditional use permit shall be subject to further amendment or revocation if the zoning enforcement officer determines that the operation of the business becomes a nuisance or exhibits a pattern of violating the conditions set forth in the conditional use permit.
In July 2015, Lime Lounge received notice from the zoning enforcement
officer that “the city has received numerous complaints regarding sound on the
patio.” The notice stated further:
Sound, above background in nature without a sound permit, is a violation of the [Board’s] order granting a conditional use permit. We find the levels and disturbance to neighbors constitutes a nuisance. We find the use of outside speakers without a sound permit constitutes a pattern and practice of violating the terms and conditions of the [Board’s] decision and order.
Lime Lounge was notified the Board would reconsider Lime Lounge’s CUP at its
August 26, 2015 meeting.
After a public hearing on August 26, 2015, the Board found:
The [Lime Lounge’s] conditional use permit should be amended to expand condition #4 of the conditional use permit granted on August 24, 2011 (ZON2011-00142). It is reasonable to clarify this condition to state that any outdoor sound or music on the patio shall be limited to levels that would be considered background auditory in nature and shall be in accordance with a type “E” sound permit. Granting the amended conditional use permit with conditions would be consistent with the intended spirit and purpose of the zoning ordinance and in harmony with the essential character of the neighborhood. This is an appropriate location for a tavern use, as it is located in the downtown area, which contains a mix of uses including taverns and restaurants. The impact of the tavern with an outdoor patio would be minimal so long as any outdoor sound or music on the patio shall be limited to levels that would be considered background auditory in nature and shall be in accordance with a type “E” sound permit. Furthermore, any noise generated by patrons using the patio must be kept to a level in compliance with article IV of chapter 42 of the city code pertaining to noise control. If the zoning enforcement officer determines at any time that the operation of the business again exhibits a pattern of violating the conditions set forth 4
in the conditional use permit, the zoning enforcement officer may apply to the Board to reconsider or revoke the conditional use permit.
Consistent with its findings, the Board amended Lime Lounge’s CUP by written
order on August 31, 2015:
WHEREFORE, IT IS ORDERED that the conditional use permit granted on August 24, 2011 (ZON2015-00142) for a tavern selling wine, liquor, and/or beer, which allows use of the 42-foot by 39-foot (1638 square feet) building as a tavern with a 17-foot by 39-foot (663 square feet) patio to the west of the building for outdoor service, where the zoning enforcement officer has determined that its operation has become a nuisance for surrounding residents and tenants, is amended, as follows: .... (4) Live outdoor music on any patio shall be limited to non- amplified performances. Any outdoor sound or music on any patio shall be limited to levels that would be considered background auditory in nature and shall be in accordance with a type “E” sound permit. .... (7) The conditional use permit shall be subject to further amendment or revocation if the zoning enforcement officer determines that the operation of the business becomes a nuisance or exhibits a pattern of violating the conditions set forth in the conditional use permit.
(Emphasis added.)
On September 3, 2015, Lime Lounge was issued a type “E” permit.
On October 16, 2015, Lime Lounge received notice from the zoning
enforcement officer that it was using speakers on the patio without the required
sound permit and the Board would reconsider its CUP at its November 18th
hearing.
At that November 18, 2015 hearing, the Board was informed that a type “E”
permit had been issued to Lime Lounge. Consequently, the Board did not 5
reconsider the CUP. However, at the hearing Lime Lounge’s landlord1 stated in
part,
So first of all, we believe that regardless of whether they had issued a sound permit, the sound is still a problem. There’s still complaints. At the very least, allowing outdoor amplified music should simply be disallowed with this conditional use permit. This is the request from the building owner. Additionally, I don’t know if it’s within your bounds today to address, but it appears that we have a problem with the sound emanating from inside the building to neighboring businesses. And, again, this is not a neighboring business that shares the same wall. There’s a two-feet difference to allow dissipation of sound, and then it’s got to go through that wall, and it is so loud it competes with their jukebox. I just talked with . . . the manager at the neighboring tavern, and it continues to be a problem, not on a daily basis, but on a regular basis. And we have no problem with the City of Des Moines enforcement staff or the Zoning Board taking action, whatever action you feel necessary, to nip this in the bud. At the very least, we support the City recommendation to eliminate the outdoor sound; however, I don’t know what kind of sound system they have in there. I’m unfortunately not sure that this alone is going to take care of this matter, but we thought that it’s important at this point. The landlord is tired of the complaints, tired of the appearances in front of Board. You’ve seen the attitude of the Applicant. He is adversarial with the landlord, and we want a tenant in there that respects its neighbor and gets along with everybody. Thank you.
Less than three months later the zoning enforcement officer took further
action. On February 4, 2016, Lime Lounge received the following notice from the
zoning enforcement officer:
On August 24, 2011 the [Board] approved a conditional use permit for [Lime Lounge] to be used as a tavern/bar. The conditional use permit is subject to amendment or revocation if the zoning enforcement officer determines that the operation of the business becomes a nuisance.
1 The tenant is actually Thunder & Lighting, Inc., doing business as Lime Lounge. 6
It has determined the sound emanating from the Lime Lounge and the patio constitutes a noise disturbance and prohibited pursuant to section 42‐252 of the Municipal Code of the City of Des Moines. The noise disturbance creates a nuisance for surrounding business and people. At times sound readings have shown the levels of sound measured at the property line have exceeded 65 dBA’s as allowed by the type “E” permit. This is a violation of the type “E” permit issued pursuant to section 42-258(e) of the Municipal Code of the City of Des Moines. Evidence of the nuisance was recorded by the Des Moines Police Department on May 9, 2015, June 5, 2015, October 22, 2015, November 19, 2015 and December 8, 2015. Staff receive[d] a complaint that on January 28 into the morning of January 29, 2016, the bass sound waves created air vibrations so annoying the occupants of a residential structure were forced to abandon their bedroom. This matter will be presented to the [Board] for reconsideration of the conditional use permit on March 23, 2016.
At the March 23, 2016 Board meeting, after providing some background
history, the zoning enforcement officer reported:
Des Moines Police Department was out again on 10/22 of ‘15 and they were at the complainant’s address and the . . . police officer reports that when they pulled up, the bass from the sound, this is when they’re outside the Lime Lounge, the bass from the sound system was so loud it vibrated my car windows and I could identify the song just by the bass alone, Get Low by Lil Jon. .... 11/19 of ‘15 we have another police officer report . . . dispatched to the complainant’s address. You have to realize the complainant lives down the alley above Jimmy John’s so his back of the building is on that alley where the sound travels down through the alley. The officer said that he found that the vibration off the drywall was creating an audible noise disturbance that would affect a person of normal sensitivities. Instead of noise getting quieter, it gets louder. The complainant apparently had attempted, this is from the police report, to get a hold of [Lime Lounge representative] Mr. QuaIley and the bartender at times to request that they turn the music down and they reported that they weren’t going to cooperate with those requests to turn the music down.
The zoning enforcement officer also reported the manager of the Lime Lounge was
arrested on December 9, 2015, for disturbing the peace and for a noise 7
disturbance,2 and then she reported sound readings taken by police at Lime
Lounge on March 12, 2016, were in excess of sixty-five decibels. A March 12
police report reciting one officer’s investigation of the noise level, stated in part,
I was thirteen feet from the open door. From this location, I used the meter and obtained an LAS Max reading of 72.6 [decibels], an LZ Peak reading of 100.3 [decibels], and a LASeq reading of 69.5 [decibels]. I then stood inside the open door of the business. From this location, I used the meter and obtained an LAS Max reading of 87.9 [decibels], an LZ Peak reading of 114.5 [decibels], and a LASeq reading of 85.4 [decibels]. These readings were all measured at a one-minute interval.
Lime Lounge’s representative contended the Board had no jurisdiction over
the matter, that there were specific procedures required to revoke its type “E”
sound permit, that the allegations preceding the November 2015 Board meeting
were res judicata, that the appropriate forum should be an administrative hearing
based on a citation or criminal complaint. A board member asked, “Is your
argument that this Board doesn’t have the right to pull the conditional use permit
that we granted?” Lime Lounge argued the “sole issue is the violation of the sound
ordinance,” which Lime Lounge asserted was to be dealt with in an administrative
hearing per section 42-266 of the Municipal Code.
The Board was presented with exhibits, complaints and comments offered
by neighbors3 and police officers, and arguments by the parties. After the meeting,
the Board voted to revoke Lime Lounge’s CUP.
2 The charges against the manager were dismissed by the magistrate judge on the ground that the city failed to present sound readings—in excess of the permitted level or otherwise. 3 One neighbor reported he had been a complainant to the police, and because there had been no resolution of the noise problems he and his family were moving out of the neighborhood. 8
On March 31, 2016, Lime Lounge filed a petition for a writ of certiorari in the
district court challenging the Board’s revocation of its CUP. It asserted the Board’s
ruling was illegal in a myriad of ways and asserted various violations of regulatory
procedure, erroneous statutory interpretation, and violations of the doctrines of res
judicata and collateral estoppel. The district court found no illegality in the Board’s
action and annulled the writ, and Lime Lounge appeals.
II. Standard of Review.
“Our review of a certiorari action is for correction of errors at law.”
Burroughs v. City of Davenport Zoning Bd. of Adjustment, 912 N.W.2d 473, 478
(Iowa 2018). “We are bound by the findings of the district court if they are
supported by substantial evidence in the record.” Chrischilles v. Arnolds Park
Zoning Bd. of Adjustment, 505 N.W.2d 491, 493 (Iowa 1993). But, “[w]e are not
bound by erroneous legal rulings that materially affect the court’s decision.” Id.
III. Discussion.
Pursuant to Iowa Code section 414.15 (2016), any person aggrieved by any
decision of the board of adjustment “within thirty days after the filing of” a decision
of the board “may present to a court of record a petition, duly verified, setting forth
that such decision is illegal, in whole or in part, specifying the grounds of the
illegality.” See Burroughs, 912 N.W.2d at 479 (stating section 414.15 “clearly
provides a deadline of ‘thirty days after the filing of the decision in the office of the
board’” to file certiorari action (citation omitted)). “Great deference is given to the
board’s authority in such contests.” Chrischilles, 505 N.W.2d at 493. 9
Lime Lounge raises a number of issues.4 The burden is on Lime Lounge to
establish that the Board’s revocation of its CUP was illegal. Illegality is established
when the fact findings of the district court do not have substantial evidentiary
support or when the board does not apply the proper law. Amro v. Iowa Dist. Ct.,
429 N.W.2d 135, 138 (Iowa 1988).
A. Authority to revoke CUP. Lime Lounge asserts the Board lacked
subject matter and personal jurisdiction over Lime Lounge and the revocation of
its CUP. It argues that the power to revoke a liquor license does not lie with the
board of adjustment and thus the revocation of its CUP, which effectively revoked
its liquor license, is unlawful. Had the Board revoked a liquor license, Lime Lounge
would have a stronger position.
Municipalities are permitted to “adopt ordinances or regulations for the
location of . . . liquor control licensed establishments” and to adopt ordinances
“governing any other activities or matters which may affect the retail sale and
4 In its brief, Lime Lounge contends (1) the district court erred in finding it failed to preserve error of several issues at the Board level, (2) the Municipal Code is in conflict with state law and the Board has no power to revoke or modify CUPs, (3) the requirement to obtain a CUP as a condition precedent to the issuance of a liquor license is in conflict with state law, (4) the Board’s procedures violated due process, (5) the Board lacks the power to take any action that would be a de facto revocation of its liquor license, (6) the Board lacks jurisdiction to consider violations of a sound permit under the law, (7) the district court’s ruling in a case against the bar manager is res judicata and prohibited the Board from reaching a different conclusion on the same factual issues, (8) the Board was “collaterally estopped from considering the bulk of the evidence presented at the third meeting” discussing Lime Lounge, (9) the Municipal Code violates the equal protection clause of the state and federal constitutions, (10) the Board’s action in revoking Lime Lounge’s CUP was illegal and unreasonable, and (11) and the Board and the zoning officer acted with negligence, in bad faith, and with malice towards Lime Lounge. In its reply brief, Lime Lounge also asserts it was denied a fair administrative hearing. The Board has moved to strike this claim, arguing an issue may not be raised for the first time in a reply brief. Our supreme court ordered this matter to be submitted with the appeal, and the appeal was then transferred to this court. 10
consumption of beer, wine, and alcoholic liquor and the health, welfare and morals
of the community.” Iowa Code § 123.39(2). And the legislature has granted to
municipalities the authority to “suspend any retail wine or beer permit or liquor
control license for a violation of any ordinance or regulation adopted by the local
authority.” Id.
The legislature has also granted to municipalities zoning authority. TSB
Holdings, L.L.C. v. Bd. of Adjustment for City of Iowa City, 913 N.W.2d 1, 14 (Iowa
2018). A municipality has statutory authority to pass zoning laws “[f]or the purpose
of promoting the health, safety, morals, or the general welfare of the community.”
Iowa Code § 414.1. “A zoning ordinance, including any amendments to it, carries
a strong presumption of validity.” TSB Holdings, 913 N.W.2d at 14 (citation
omitted).
Pursuant to Iowa Code chapter 414, any city council exercising zoning
authority is to create a board of adjustment. See Iowa Code § 414.7. The board
of adjustment “may in appropriate cases and subject to appropriate conditions and
safeguards make special exceptions to the terms of the ordinances in harmony
with its general purpose and intent and in accordance with general or specific rules
therein contained.” Id. The code specifically provides to boards of adjustment the
following powers:
(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto. (2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance. (3) To authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public 11
interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.
Id. § 414.12.
Here, under its zoning authority, the city of Des Moines has determined
“[t]he sale of alcoholic liquor, wine and beer is permitted only in” designated zoning
districts and “subject to the conditions applicable to the business” as identified in
a table. Municipal Code of the City of Des Moines, Iowa § 134-954(a) (hereinafter
“Municipal Code”). In order to be permitted to sell liquor, taverns and night clubs
must be located within certain zoning districts and must obtain a CUP from the
board of adjustment. Id. Consequently, Lime Lounge is only permitted to sell
alcoholic beverages at its present location because it obtained a CUP granted by
the Board. Id. § 134-954(b).
The CUP by its very terms was subject to the permit holder’s compliance
with the conditions specified and “shall be subject to further amendment or
revocation if the zoning enforcement officer determines that the operation of the
business becomes a nuisance or exhibits a pattern of violating the conditions set
forth in the conditional use permit.” It would defy logic to conclude the “further
amendment or revocation” was not within the Board’s authority.
Here, the zoning enforcement officer did find Lime Lounge was operating in
such a manner as to constitute a nuisance because of complaints and sound meter
readings and sought review of Lime Lounge’s CUP, which is authorized by the
Municipal Code. Id. § 134-954(c)(6) (“If the zoning enforcement officer determines
at any time that the operation of such a business exhibits a pattern of violating the 12
conditions set forth in the conditional use permit, the zoning enforcement officer
may apply to the board to reconsider the issuance of the conditional use permit for
such business.”). The Board had the authority to review the CUP and the asserted
violations under Iowa Code section 414.12(1) and (3).
B. Conflicts with state law. (a) Lime Lounge contends that only the state
has the power to revoke its liquor license. Be that as it may, the Board did not
revoke Lime Lounge’s liquor license. The Board revoked Lime Lounge’s CUP, a
matter that was within the Board’s authority.
(b) Lime Lounge next asserts requiring that a fee be paid to the city for the
issuance of a CUP violates Iowa Code section 123.37(1). This claim was not made
to the Board and is therefore not subject to our review. See Bontrager Auto Serv.,
Inc. v. Iowa City Bd. of Adjustment, 748 N.W.2d 483, 487 (Iowa 2008) (“A reviewing
court will not entertain a new theory or a different claim not asserted on the board
level.” (citations omitted)).
C. Due process. Next, Lime Lounge asserts the Board’s meeting
procedures revoking or reconsidering its CUP violated due process. At the March
23, 2016 Board meeting at issue here, Lime Lounge asserted it had a due process
right to have the sound violations addressed in the appropriate forum by way of an
administrative hearing or a criminal proceeding. Specifically, Lime Lounge
contended it should be afforded the right to cross-examine witnesses. Lime
Lounge contended the “sole issue” before the Board at the meeting was the “sound
permit” and that attempting to determine the issue at the board level was improper.
We determine Lime Lounge has preserved its claim of a violation of due process
related to its claim of a right to cross-examine witnesses and object to evidence. 13
While we do not disagree that the Municipal Code provides for procedures
for revoking a sound permit5 and alternative methods for prosecuting specific
alleged violations of the noise ordinances by a person,6 the question before the
Board on March 23, 2016, was whether Lime Lounge was complying with the
conditions of its CUP. We are not convinced the Board’s authority to determine
whether Lime Lounge was complying with its CUP was governed or precluded by
the separate questions of a possible revocation of a sound permit, municipal
infraction, or criminal violations for noise disturbances. Lime Lounge provides no
authority, and we have found none, that requires proof of any such facts before a
CUP is revoked.
Lime Lounge contends it was “entitled to the same level of fairness as in a
court of law.” Relying on Rodine v. Zoning Board of Adjustment of Polk County,
434 N.W.2d 124, 126 (Iowa Ct. App. 1988), Lime Lounge argues it should have
been afforded the right to cross-examine witnesses and the right to object to
evidence. Lime Lounge reads too much into Rodine.
We acknowledge the Board performs judicial functions within its specialized
jurisdiction. See Rodine, 434 N.W.2d at 126. And, in the performance of this
adjudicatory function, the parties whose rights are involved “are entitled to the
same fairness, impartiality and independence of judgment as are expected in a
5 See Municipal Code §§ 42-265, -266. 6 The Municipal Code provides, “No person shall make, continue or cause to be made or continued any noise disturbance as defined in this article.” Municipal Code § 42-252. “Any person . . . who commits an act prohibited by the provisions of this article, shall be guilty of a simple misdemeanor or a municipal infraction punishable by a criminal or a civil penalty as provided by section 1-15.” Id. 42-268. 14
court of law.” Id. Yet, the procedures and rules of evidence are less rigid in quasi-
judicial bodies than in courts. Id.
The question before this court is whether Lime Lounge was afforded a
meaningful opportunity to be heard under the three-pronged Mathews test.7 See
Weizberg v. City of Des Moines, ___ N.W.2d ___, ____, 2018 WL 4178518, at *9
(Iowa 2018). We must (1) consider whether the plaintiff has asserted a
constitutional interest entitled to procedural due process protection, (2) evaluate
the risk of erroneous deprivation that may arise from the offered procedure, and
(3) evaluate the nature of government’s interest. Id. The Board does not contest
Lime Lounge’s claim of a property right by virtue of the CUP. The parties differ,
however, as to what process is due.
Lime Lounge’s right to use its property to sell alcoholic beverages was
subject to compliance with several conditions, including compliance with article IV
of chapter 42 of the Municipal Code. See Municipal Code § 134-954(b), (c). The
purpose of article IV of chapter 42—entitled “Noise Control”—is “to establish
standards for the control of excessive noise in the city by setting maximum
permissible sound levels for various activities to protect the public health, safety
and general welfare.” Id. § 42-249. The purpose is in accord with the city’s policy
to promote an environment free from excessive noise, which unnecessarily jeopardizes the health and welfare and degrades the quality of the lives of the residents of this community, without unduly prohibiting, limiting or otherwise regulating the function of certain 7 Mathews v. Eldridge, 424 U.S. 319, 335 (1976), provides the court is to consider: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 15
noise-producing equipment which is not amenable to such controls and yet is essential to the economy and quality of life of the community.
Id. § 42-248(5). The health, safety, and quality of the lives of the city’s residents
are important interests, which the city has recognized are to be balanced with a
business’s right to function without excessive regulation.
On February 4, 2016, Lime Lounge was provided notice by the zoning
enforcement officer that it was not in compliance with its CUP. This notice came
after Lime Lounge had its CUP modified and was specifically notified future
noncompliance could result in the revocation of its CUP.
Lime Lounge was afforded a public hearing on March 23, 2016, and was
permitted to present opposition witnesses to the zoning enforcement officer’s
recommendation. Counsel also appeared and argued the merits of the evidence
presented to the Board.
The zoning enforcement officer offered evidence of a number of complaints
related to noise from neighbors from as far as a block away. Complainants and
police officers investigating noise complaints offered statements to the Board.
Lime Lounge’s representative acknowledged that there had been complaints but
asserted the complaints were not legitimate. The representative advocated for
Lime Lounge’s right to emit sounds of a certain decibel level even if neighbors
would be affected, and he asserted the district court had concluded the authorized
levels had not been exceeded.8 The Board considered evidence to the contrary
and other factors and issued a finding that Lime Lounge was not entitled to a CUP.
8 The Lime Lounge manager, Michelle Yarger, was arrested for a noise disturbance and disturbing the peace, which are misdemeanors. See Municipal Code § 42.252 (“No 16
Lime Lounge was also afforded the right to challenge the Board’s findings
by its certiorari action. See Bontrager, 748 N.W.2d at 496. In the certiorari hearing,
the action is tried de novo and the court may accept additional evidence if
necessary for a proper disposition.9 Iowa Code § 414.18. We conclude under this
legislative scheme, procedural due process did not require a formal evidentiary
hearing that included cross-examination of the proponents before the Board. See
Montgomery v. Bremer Cty. Bd. of Supervisors, 299 N.W.2d 687, 693-94 (Iowa
1980) (concluding due process for public hearing did not require a formal
evidentiary hearing). We find no denial of Lime Lounge’s due process rights.
D. The revocation of its CUP is not equivalent to revocation of its liquor
license. Lime Lounge asserts the revocation of its CUP is a de facto revocation
of its liquor license. We are not convinced of this premise. We acknowledge the
revocation of the CUP may lead to various repercussions, but the sole issue before
the Board was whether Lime Lounge had complied with the conditions of the use
permit and if it should be revoked. Thus, we do not address the claim that the
Board is without power to revoke a liquor license.
E. Board did not consider violations of a sound permit. Lime Lounge
next asserts the Board lacked jurisdiction to consider violations of a sound permit
person shall make, continue or cause to be made or continued any noise disturbance as defined in this article.”). Section 42.246 defines “noise disturbance” and provides several alternative means of causing a noise disturbance. The court deciding the criminal case accepted Yarger’s assertion that without a sound reading in excess of sixty-five decibels the city could show no violation and dismissed the charges. See Municipal Code § 42.246, “Noise Disturbance” alternative “4.” While we may disagree with that court’s reading of the ordinance at issue, the matter is not before us. 9 “De novo” under the county zoning scheme simply means additional evidence may be accepted for proper disposition. See Buchholz v. Bd. of Adjustment of Bremer Cty., 199 N.W.2d 73, 78 (Iowa 1972). 17
and the Board failed to follow administrative procedures to revoke a sound permit.
This contention is based upon its claim before the Board that the “sole issue” at
the March 23 Board meeting was its sound permit.
We acknowledge there are specific procedures provided to revoke a sound
permit. See Municipal Code § 42-265, -266. But the issue before the Board was
not a revocation of Lime Lounge’s sound permit but the revocation of its CUP. The
sound permit only authorized exterior sound equipment not exceeding sixty-five
decibels and did not authorize an excessive noise level emitting from the inside of
the building—as much of the evidence reflected. We find that while there may be
intersecting questions involved in the revocation of a sound permit in an
administrative proceeding and reconsideration of a CUP, the Board had authority
under the CUP provisions themselves to amend or revoke the CUP for
noncompliance with its terms.
F. The district court’s ruling in a criminal matter was not res judicata
of the issue before the Board. Lime Lounge contended before the Board that
the issue of a noise disturbance was res judicata arguing, “The first officer, that
entire testimony was presented in front of a district court judge and that has been
adjudicated.” This statement is not factually correct. One of the two officers who
presented statements at the March 23, 2016 Board meeting had been called in the
criminal case on a preliminary matter of the city’s sound equipment. As noted in a
footnote above, the Lime Lounge’s manager was charged with disturbing the 18
peace and causing or maintaining a noise disturbance. The criminal charge was
dismissed before any evidence at trial was offered.10
“The doctrine of res judicata embraces the concepts of claim preclusion and
issue preclusion.” Spiker v. Spiker, 708 N.W.2d 347, 353 (Iowa 2006). “[I]ssue
preclusion requires the issue to have been actually litigated.” Id. As for claim
preclusion, Lime Lounge, as the party seeking to invoke the doctrine, must
establish three elements: (1) the parties in the first and second action were the
same: (2) the precluded claim could have been fully and fairly adjudicated in the
prior case; and (3) there was a final judgment on the merits in the first action. See
id.
We disagree with Lime Lounge that the magistrate’s legal conclusion in that
criminal adjudication bound the Board on any issue involved in the Board’s
reconsideration of Lime Lounge’s CUP. Lime Lounge’s compliance with its CUP
was not litigated in the criminal case and thus there can be no issue preclusion.
See id. And Lime Lounge has not established the three elements required for
claim preclusion. The Board was not a party to the criminal action so we do not
have the same parties. There was no final adjudication on the merits of the
whether the manager was guilty of a noise disturbance because the case was
dismissed prior to trial. Lime Lounge’s compliance with its CUP was not at issue.
10 The magistrate stated, “[T]here’s no evidence that’s going to be submitted that the decibel level exceeded this particular decibel or this threshold, and we’ve got a special use permit that allows this particular business to put out sound up to sixty-five decibels.” The magistrate also noted, “I could be wrong. And since this is a . . . pretrial motion to dismiss, you know, maybe I could be appealed.” 19
Rather, the question was whether the bar manager was criminally responsible for
a noise disturbance.
We do not agree with Lime Lounge that the Board was precluded from
considering complaints that had previously been brought to its attention. At the
August 26, 2015 Board meeting, the Board reconsidered Lime Lounge’s CUP and
concluded it should be amended (not revoked). The Board specifically found “the
business has constituted a nuisance for surrounding residents and businesses.”
On August 31, 2015, Lime Lounge’s CUP was modified after the zoning
enforcement officer “determined that its operation has become a nuisance for
surrounding residents and tenants.” The amended CUP provides:
WHEREFORE, IT IS ORDERED that the conditional use permit granted on August 24, 2011 (ZON2015-00142) for a tavern selling wine, liquor, and/or beer, which allows use of the 42-foot by 39-foot (1638 square feet) building as a tavern with a 17-foot by 39-foot (663 square feet) patio to the west of the building for outdoor service, where the zoning enforcement officer has determined that its operation has become a nuisance for surrounding residents and tenants, is amended, as follows: .... (4) Live outdoor music on any patio shall be limited to non- amplified performances. Any outdoor sound or music on any patio shall be limited to levels that would be considered background auditory in nature and shall be in accordance with a type “E” sound permit. .... (7) The conditional use permit shall be subject to further amendment or revocation if the zoning enforcement officer determines that the operation of the business becomes a nuisance or exhibits a pattern of violating the conditions set forth in the conditional use permit.
Lime Lounge did not appeal this action by the Board and thus any matters
inhering in the amended CUP are not subject to challenge here. See Burroughs,
912 N.W.2d at 478 (noting thirty-day deadline for filing a certiorari action). 20
Because Lime Lounge was notified its operation had been determined to be
a nuisance in the past and that its CUP “shall be subject to further amendment or
revocation” if “the operation of the business becomes a nuisance or exhibits a
pattern of violating the conditions set forth in the [CUP],” we determine the Board
could reasonably consider prior complaints in the question of whether Lime
Lounge’s operation was “exhibit[ing] a pattern of violating the conditions set forth.”
G. Lime Lounge’s equal-protection claim was not raised below. Lime
Lounge asserts the city’s scheme under the Municipal Code where only certain
entities are required to obtain a CUP violates the Equal Protection clauses of the
state and federal constitutions. This claim was not raised before the Board and
we do not consider it on appeal. See Bontrager, 748 N.W.2d at 487.
H. The Board’s ruling was not illegal or otherwise unreasonable. The
Board ruled:
At this time, the Board finds that the zoning enforcement officer had adequate justification for bringing the conditional use permit back to the Board for amendment or revocation. The testimony received during the public hearing, the pattern of past noise complaints, and the past sound meter readings taken by the Des Moines Police Department clearly demonstrate that the business does not satisfy the criteria necessary for having a conditional use permit. The location, design, construction and operation of the business does not adequately safeguard the health, safety and general welfare of persons residing in the adjoining and surrounding residential area. The business is not sufficiently separated from the adjoining area and surrounding residential uses 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 use. Furthermore, the business has constituted a nuisance for surrounding residents and businesses. Therefore, the conditional use permit shall be revoked. 21
We must determine whether Lime Lounge has met its burden to show the
Board’s action was illegal or unsupported by substantial evidence. See id. at 495;
City of Cedar Rapids v. Mun. Fire & Police Ret. Sys., 526 N.W.2d 284, 287 (Iowa
1995). “Evidence is substantial ‘when a reasonable mind could accept it as
adequate to reach the same findings.’” City of Cedar Rapids, 526 N.W.2d at 287
(Iowa 1995) (citation omitted). The Board is permitted to rely on anecdotal
evidence, including the neighbor who reported the sound from Lime Lounge rattled
the drywall of his apartment. See Bontrager, 748 N.W.2d at 496. “In addition, the
Board may rely on commonsense inferences drawn from evidence relating to other
issues, such as use and enjoyment, crime, safety, welfare, and aesthetics,” to
make its findings. Id.
The Municipal Code defines “noise” as “any sound which disturbs humans
or which causes or tends to cause an adverse psychological or physiological effect
on humans.” Municipal Code § 42-246. The code provides further, “No person
shall make, continue or cause to be made or continued any noise disturbance as
defined in this article.” Id. § 42-252.
A “noise disturbance” means:
(1) Any sound[ ] which unreasonably endangers or injures the health or safety or welfare of a human being; or (2) Any sound which unreasonably disturbs a person of normal sensitivities; or (3) Any sound which unreasonably devalues or injures personal or real property; or (4) Any sound which is in excess of decibel levels set forth in this article.
Id. § 42-246. 22
Moreover, the Municipal Code provides several factors “which may be considered
in determining whether a noise disturbance exists”:
(a) The level of the noise; (b) The level and intensity of any background noise; (c) Whether the nature of the noise is usual or unusual; (d) Whether the origin of the noise is natural or unnatural; (e) The proximity of the source of the noise to sleeping facilities; (f) The land use, nature and zoning of the area from which the noise emanates and of the area where the noise is received; (g) The time of day or night when the noise occurs; (h) The duration of the noise; (i) Whether the noise is recurrent, intermittent or constant.
Id. § 42-246(5). The list is not exclusive.
Here, the evidence included many noise complaints and several meter
readings, several in excess of eighty-five decibels. Clearly, the sound emitting
from the Lime Lounge was unreasonably disturbing individuals and other
businesses in the area. A city authorized sound permit did not authorize unlimited
noise emitting from the premises. Having reviewed the record, we find there is
substantial evidence from which the Board could make its findings.
In conclusion, we have considered the issues raised by Lime Lounge and
find them to be without merit or not properly raised. We affirm the district court.
AFFIRMED.