August 26, 2021 at 1:32 p.m.
Oneida County, town of Minocqua: Show us your papers, or else!
Oneida County, town of Minocqua: Show us your papers, or else!
Give an inch, and regulators take a mile.
In Oneida County these days - and in Minocqua, too - that uncontrolled growth is manifesting itself in many ways, and one of the most serious is in new restrictions and abuses of property rights.
Within the county, the zoning department has for some reason veered toward a far more aggressive and restrictive approach to regulation, perhaps sensing that the zoning committee has become politically weak. Exhibit A was last year's attempt by zoning staff to bypass the elected zoning committee and work with the DNR and a stealth team of self-appointed ordinance writers to reshape the county's zoning ordinance, all to fit new restrictive DNR interpretations of state law.
There was also this year's attempt, also unsuccessful, to punish Minocqua resident Doug McCoy for doing the very work the department had given him a permit to do, once again in an effort to put more restrictive polices into practice.
In the latest case, as we report in today's edition, the department issued a tourist rooming house permit to Minocqua property owner Amy Davis but placed a most unusual and outrageous condition on the permit: Within 60 days, Davis had to provide a letter from the DNR proving a pier in front of her property was compliant with state regulations, or lose her tourist rooming house permit.
There are so many problems with such a condition that it's hard to know where to begin, but the bottom line is, the county has moved from requiring compliance with state and local regulations as a condition of a conditional use permit (or, as in this case, an administrative review permit) to requiring that law-abiding citizens first prove they are compliant with myriad regulations that have nothing to do with the permit they are seeking.
That increases the paperwork and technical burdens property owners face in getting permits for their projects, and, further, it opens the door to harassment and political discrimination, not to mention a violation of equal protection rights, as we will show in a moment.
It's important also to understand that the county did not act alone in making this overreaching decision. In fact, the town of Minocqua plan commission engineered the illegal condition - ripe for a court challenge, by the way - by passing a motion recommending that the county approve the permit "with the condition that the applicant provides a letter to the county from the DNR stating that the pier is compliant with state and county codes within 60 days."
And why did the town pass such a motion? Well, it seems that a neighbor had raised a question about the pier in front of the property, and plan commission member Mark Pertile mentioned that the neighbor might contact the DNR. Based on a "strong belief" that the pier was not compliant, the plan commission voted to require Davis to prove it was legal to keep her tourist rooming house permit.
To summarize all this, the plan commission's vote was based on nothing more than "a strong belief." The neighbor complaining about the pier had not at the time actually contacted the DNR, at least so far as the plan commission knew, and the DNR certainly had taken no action or even made an allegation, which is important because it is the DNR that has jurisdiction over the pier, not the county or town.
In other words, without anything more than a neighbor's accusation and their own personal opinion, the plan commission voted to punish Ms. Davis about a pier over which they have absolutely no jurisdiction.
Making matter worse, the commission member making the motion, Mark Pertile, and the member seconding the motion, Phil Albert, are both unelected members of the panel. So unelected "planners" are assuming legal authority in areas where they have none and weaponizing it to punish people they don't like or who are doing things they don't like.
All of which brings us back to the county. A tourist rooming house is an administrative review permit, meaning zoning staff sign off on the permit without having to go to the county zoning committee, if it meets the regulations for such establishments. They can attach conditions, just as with conditional use permits.
But the town's recommendations, for or against a permit, and about certain conditions they want, are entirely just that: suggestions. The county makes the call, and in this case the county attached the offending condition to the permit.
This past week, zoning director Karl Jennrich acknowledged to us that the condition did amount to overreach and that it should just have required "compliance with WDNR pier regulations," rather than making Ms. Davis prove compliance because, as Mr. Jennrich acknowledged, the DNR had not raised a concern about any pier on the property.
What Mr. Jennrich did not say was whether the condition will now be removed from the permit. It should be.
The behavior in this case calls attention to three things. First, Ms. Davis's equal protection rights were violated by both the town and the county. Like other citizens, Ms. Davis had applied for a permit. Like other citizens, Ms. Davis had not been found in violation - or even accused - of any other zoning violation by any agency of jurisdiction. Yet unlike other citizens, she was required to provide proof of her law-abiding status. That's discrimination because she has not been treated the same as other property owners similarly situated and in similar situations.
In Davis's case, the town and the county wanted her to show her papers, or else. That's a disturbing trend in all of government.
Second, one can see how easily this discrimination can be dispensed based on whether the people on the plan commission or working in county offices like you or like what you're doing. If the plan commission and the county can get away with this, just about any frivolous accusation could lead to onerous conditions based not on the law and on legal standards, but on the personal preferences of those making the decisions.
And third, these are unelected people making decisions that affect the property rights and livelihoods of citizens. The town board of Minocqua needs to rein in the plan commission and adopt safeguards that ensure that elected officials are held accountable for its decisions, and the county zoning committee needs to do the same when it comes to administrative review permits.
In our story, Mr. Jennrich spoke of his desire to please towns, calling the conditions they want to place on permits a "touchy issue." With all due respect, however, it is not Mr. Jennrich's job to appease towns; it is his job to issue permits in accordance with the law and county ordinances.
Which brings us to our last and most important concern. And that is, when it comes to conditional use permits and administrative use permits generally, and the conditions placed on them, governments are increasingly and illegally stretching the boundaries of what conditions they are allowed to place on projects, and this case provides a quintessential example.
If one looks at state statutes regarding conditional uses, the law is very clear: "Any condition imposed must be related to the purpose of the ordinance and be based on substantial evidence."
So what is the purpose of the ordinance?
The Oneida County code tells us: "However, there are certain uses that, because of their unique characteristics, cannot be properly classified as unrestricted permitted uses in any particular district or districts without consideration of the impact of those uses upon neighboring land or public facilities, and of the public need for the particular use. Such uses, nevertheless, may be necessary or desirable to be allowed in a particular district provided that due consideration is given to location, development and operation of such uses."
That is for a conditional use permit, but the ordinance explains that similar conditions for similar purposes can be attached to administrative review permits, which in any event require less scrutiny than conditional use permits.
In other words, any condition placed on Amy Davis's tourist rooming house permit must be related to the tourist rooming house's impact upon neighboring land or public facilities, and, specifically, related to its location, development and operation.
As such, as Mr. Jennrich stated, conditions could be placed on the operation such as making sure the town room tax is paid or getting a health department license. Both of those conditions concern the use of the property as a tourist rooming house and govern its operation and its impacts in that capacity.
But the pier has nothing to do with the operation of the tourist rooming house. It is either compliant or noncompliant, and that doesn't change whether the property is used as a private residence or a tourist rooming house. And its use is the same whether it's a private residence or a tourist rooming house.
As one person at the plan commission said, correctly, those are two separate issues. The law is clear that any condition on a permit must relate to the purpose of the ordinance, in this case to control and "condition" the impact that the tourist rooming house itself would have, and the pier is entirely irrelevant to that purpose.
So not only did the largely unelected plan commission (five unelected out of seven members) have no jurisdiction to try and tie the rooming house permit to the pier, such a link would have been null and void even if it had jurisdiction.
And, in this light, even Mr, Jennrich's claim that the condition should have simply required Ms. Davis to be compliant with DNR pier regulations is similarly flawed because such compliance, again, has no relevance to the impact of the tourist rooming house, i.e., to the purpose of the ordinance.
All this begs for the county zoning committee and county board to revisit conditional uses in general, and to be vigilant about attempts by emboldened bureaucrats and radical environmentalists to insert specious conditions irrelevant to the purpose of the ordinance.
It also cries out for the residents of Minocqua to demand that the town board get control of the plan commission, or, in the alternative, for voters to get control of the town board.
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