Bangstad sues town of Minocqua

Kirk Bangstad and the Minocqua Brewing Company have filed a federal civil rights complaint against the town of Minocqua, alleging violation of Bangstad’s free speech, due process, and equal protection rights, and also alleging municipal liability for unconstitutional customs and policies.

The complaint, filed in the United States DistrictCourt for the Western District of Wisconsin, names as defendants the town of Minocqua, town chairman Mark Hartzheim, supervisors John Thompson and Sue Heil, and John Does 1-10, the names of whom the complaint does not disclose but defines as “employees, elected officials, or other individuals with policy and decision-making authority over the town of Minocqua …”

Bangstad’s complaint accuses the defendants of unconstitutional retaliation in response to Bangstad’s protected political activity and speech.

“Defendants have been exercising their authority as though they were little despots ruling over the Kingdom of Minocqua,” the complaint states. “Their authoritarian and unconstitutional conduct has been nearly limitless, and their campaign of retaliation, harassment, and intimidation against the plaintiffs has known no end.”

Specifically, Bangstad alleges that the defendants “repeatedly, unconstitutionally, and unjustifiably” impeded his zoning applications, attempted to enforce ordinances against him based on fabricated authority, and otherwise discriminated, intimidated, and retaliated against him because of his outspoken progressive political activity.

In addition, Bangstad’s complaint asserts, the defendants imposed an extended and notably more arduous zoning procedure than other similarly situated businesses, violating his due process rights, while also allowing “clearly biased members” of the town board to adjudicate zoning decisions related to the Minocqua Brewing Company (MBC).

What’s more, the complaint states, Bangstad’s equal protection rights were violated “by way of a campaign of intimidation” wherein the named defendants took enforcement actions against the MBC, allegedly without the authority to do so, and “regularly and repeatedly filed complaints against the Minocqua Brewing Company” with Oneida County for ordinance violations while refusing to file similar complaints against other businesses engaged in comparable conduct.

The defendants’ retaliation persists, the complaint asserts, and is explicitly tied to Bangstad’s progressive political activities. 

Bangstad also alleged that Heil and Thompson are affiliated with what Bangstad calls a Facebook “hate group” called ”We Love You Kirk.” 

“Ultimately, defendants have been exercising their authority with an entitlement reminiscent of King George III and treating Minocqua as their personal fiefdom,” the complaint states. “They have taken it upon themselves to determine who merits the constitutional protections guaranteed to all Americans and who does not. They have additionally imposed their own criteria for what is acceptable political activity within the town of Minocqua and use the powers of the town government to punish any individual and/or businesses that criticizes or disagrees with them.”

The grievances

The parking at MBC’s Front Street location has been a major issue, and it’s a major grievance for Bangstad in the lawsuit. According to the complaint, Bangstad requested a waiver of the county’s seven required parking spaces in his administrative review permit (ARP) application and did not foresee any issues receiving the parking space waivers because, he alleges, the town follows a “very clear custom” of always recommending that Oneida County waive parking space requirements.

“In fact, over the course of the past three years, the town has recommended the waiver of 174 parking spaces for 11 businesses within the downtown Minocqua area alone, and upon information and belief has not refused to recommend a parking requirement waiver for any business during those same three years,” the complaint states.

Bangstad’s complaint also maintains that when he operated his company from a different location in downtown Minocqua, he had received parking space waivers and was even allowed to use parking spaces owned by the town.

“Further, when Bangstad sold that prior business, Minocqua Brewing Company Inc, in 2021, the individual who purchased the business and the building applied for an ARP and received a recommendation from the town for 43 parking space exemptions, and they were also allowed to use parking spaces owned by the town,” the complaint states.

Bangstad’s complaint cited another downtown business that he alleges the town’s plan commission recommended waiving 12 required parking spots so they could use their building’s old parking lot as an outdoor patio dining area.

“Effectively they were granted exactly the same recommendation that plaintiffs were requesting for MBC,” the complaint asserts.

Bangstad’s complaint cites what he calls other “unnecessary and burdensome conditions” recommended by the town board, one being a revocable license agreement with the town to allow access across the so-called “pork chop” from U.S. Highway 51 to the MBC tap room parking lot.

“The license agreement required by the board allowed the town to revoke access at any time and without any form of due process, effectively giving town control over the property,” the complaint states. “…During the 20 plus year span of Z-Best Bikes operation at [the same location], a driveway was present allowing vehicles to cross the pork chop which provided access from U.S. Highway 51 to the Z-Best Bikes parking lot at [that location]. It should be noted that the town did not mandate that Z-Best Bikes have a revocable license agreement before they would allow customers to drive over the pork chop and access the Z-Best Bikes parking lot.”

Bangstad received his ARP with a one parking spot waiver, but he maintains in the complaint that the town attorney sent him a letter in the spring of 2022 telling him he could not open before meeting all ARP conditions and that he could not place tents on the property to create outdoor seating. (There was no provision for outdoor seating in Bangstad’s ARP, which would require a conditional use permit, or CUP, which Bangstad subsequently applied for; that application is pending).

Bangstad’s complaint asserts that the town had no authority to enforce those commands — and knew they did not have such authority — and sent the spring 2022 letter solely to harass and intimidate him. Bangstad also alleges that his ARP did not contain a requirement that he meet all of its conditions before the taproom opened.

The harassment and intimidation continued through a litany of complaints the town and/or its agents filed with the county, Bangstad’s complaint asserts.

“Upon information and belief, defendants proceeded to make repeated complaints, either directly or via agents, about plaintiffs’ alleged violations of their ARP’s restrictions on outdoor activities and signage knowing that at least two other businesses in downtown Minocqua were operating under ARPs with the same restrictions and were engaging in outdoor activities,” the complaint states. “Defendants did not file complaints against the other businesses, nor cause complaints to be filed against the other violating businesses during the relevant time period, however.”

What’s more, Bangstad’s complaint asserts, Hartzheim had used his position as town chairman to lobby the county against him.

“Throughout the entire CUP application process, Hartzheim used his position as chairman of the town board of supervisors to deliberately interfere with plaintiff’s CUP application by consistently contacting county staff with a variety of demands and ‘suggestions’ that were only intended to obstruct and disrupt the progression of the application process,” the complaint states.

Bangstad’s complaint contends that the alleged constitutional violations were a result of his political activity.

“In 2020, Bangstad become [sic] significantly more politically active and vocal,” the complaint states. “He publicly espoused left-wing viewpoints, plastered his building with signs for Democratic political candidates, openly criticized the town’s response to the COVID-19 pandemic, and ran for public office as a Democrat.”

The impact of the defendants’ actions have both immediate and losing-term ramifications, Bangstad’s complaint argued.

“The intent of the defendants to punish progressive political activity was clear and their retaliatory actions have been both brutal and effective,” the complaint states. “Defendants’ conduct is also likely to have a profound and lasting chilling effect on progressive political activity within the town of Minocqua for years to come.”

Bangstad is represented in the lawsuit by Brian H. Potts of Perkins Coie LLP and by Frederick Melms of Woodruff (no affiliation with Melms, Hogan & Francois, LLC in Minocqua).

A response

For his part, Hartzheim did not comment directly on the lawsuit but simply referred The Times to the town’s recommendations sent to the county, underscoring pertinent points the town has already made.

In a July 27 letter recommending denial of Bangstad’s CUP application, sent to Oneida County zoning director Karl Jennrich, Hartzheim dismissed Bangstad’s claim that he or any other town official had discriminated against Bangstad because of his political beliefs and activities.

“The owner repeatedly recites false claims and innuendos that the town holds some personal bias or animus against him, but the town board of supervisors is handling the matter of this property in the same way it would for any other prospective owner of this property,” Hartzheim wrote. “There is no evidence to support the applicant’s claims that the town has a vendetta or personal/political animus against him. The town’s position on enforcement has nothing to do with the politics of the owner or a political sign the owner displayed years ago, or simply a dumpster.”

Any hardships Bangstad finds himself in are of his own making, Hartzheim wrote, despite Bangstad’s campaign to hold everyone accountable but himself.

“The hyper-partisan and divisive rhetoric we see at the national level has apparently created an opening for conflict entrepreneurs at the local level, who seek to benefit from blurring fact and fiction,” he wrote. “Too many social media provocateurs seek to addict followers to outrage and cultivate conflict rather than resolve it. It has truly been unfortunate to see such rhetoric injected into a small-town landscape.”

Even in the face of a continuous barrage of unfounded claims, the town board has to continue looking at the situation objectively, Hartzheim asserted.

“I give every possible assurance that the town is treating this business in the same manner it would treat any other owner proposing a similar use on this property with its inherent limitations,” he wrote. “We will continue to do what we believe is in keeping with the rules and the best interests of  the community.”

In that letter, Hartzheim asserted that Bangstad was in willful and intentional violation of his ARP conditions.

“The owner has attempted to knowingly add additional violations such as scheduling a food truck and other outdoor activities with the prior knowledge that it wasn’t allowed,” he wrote. “From the beginning, the owner has treated rules as optional, simply choosing not to follow them if they don’t suit his purposes.”

As for what was allowed or not allowed on the same property under previous owners, Hartzheim said the regulatory scheme is different.

“Previous businesses on this property pre-dated zoning permit requirements, but a driveway and parking area did always exist on the property,” he wrote. Hartzheim also wrote that the town has always taken a consistent position that parking be required where it is practical and reasonable to do so, and, if any comparable business asked to be exempt from any parking requirement, the town would take the same position against it.

“When comparing apples to apples, there are no similar businesses that have been approved to provide zero customer parking,” he wrote. “That type of exception is made only for buildings on main street and where the pattern of development has building footprints lot line to lot line. The new proposal put forth by the applicant would require an even higher number of customer parking spaces yet continues to propose none.”

Far from trying to obstruct Bangstad, Hartzheim wrote, the town made considerable effort to try and fashion a workable plan for the location.

“The fact is that county zoning code determines the number of parking spaces required, and that number was provided by county zoning staff,” he wrote. “We just had to work to find the most workable way to do it, which we did. To make the plan more workable, the town supported waiving three different required site plan elements. This included waiver of one space that would not fit, modifying the square footage for parking space size, and waiver of the 5-foot lot line setback along the east property line.”

In an Aug. 2 email to Jennrich and the zoning committee, Hartzheim reiterated many of those points but also challenged Bangstad’s assertions about the revocable license agreement. 

“The access license agreement was not overly onerous at all; in fact, it protected the owner’s assurance of continued use of the access,” he wrote. “The agreement simply assured that the business access from the highway over the town’s right-of-way parcel was to be used only for access to the business — not other purposes — and required that the business be in compliance with the conditions of the ARP.”

How would that be onerous? Hartzheim asked.

“It would only be onerous if the business had other intentions than to comply with the ARP conditions or to use the access for a purpose other than a driveway access,” he wrote.

Hartzheim also disputed Bangstad’s assertion that the town could simply void the agreement.

“The statement that the town could have nullified the agreement for virtually any reason is completely false,” he wrote. “The owner stated on numerous occasions long after the agreement was drafted that his attorney was okay with it, yet refused to follow through. Then, just weeks ago a new attorney again prodded the town to again forward the access agreement for them to sign, and even though the town’s attorney and the new attorney agreed on the terms, the owner backed out yet again.”

Richard Moore may be reached at richardd3d.substack.com.