Oneida zoning approves Bangstad permit

The second — or maybe the third or fourth or fifth, depending on how you look at it — time around was the charm for Minocqua Brewing Company owner Kirk Bangstad last week, as the Oneida County zoning committee approved a conditional use permit for an outdoor beer garden at his Front Street retail location.

The first attempt for a CUP was denied earlier this year. The second attempt also faced a motion to deny in early August, when, in the middle of the vote, county corporation counsel Mike Fugle advised the committee to adjourn — illegally, as it turns out — because another party needed the room.

The third attempt — or the continuation of the second attempt — came the following week when the committee withdrew the motion to deny so they could pass another motion to give Bangstad more time to work out a compromise with the county.

The fourth attempt was set for September 20 — supervisor Bob Almekinder had objected to the illegal August 2 adjournment and the CUP decision was placed on the meeting agenda in case the objection was sustained, only to be yanked at the last minute. 

The fifth attempt — in reality the continuation of the August 2 vote — came last week as committee chairman Scott Holewinski admitted the adjournment was improper and sustained Almekinder’s objection, leading to yet another vote on the original motion to deny. That was voted down, and then the committee unanimously awarded Bangstad his permit.

However, in an attempt to appear forceful, the committee attached a stringent set of conditions — some of which Bangstad had proposed, some of which he has objected to — one of which is that all the conditions must be met before he can serve outdoors anywhere on the property.

In effect, the committee significantly rewrote the pending CUP application, producing through the attached conditions a new permit crafted by mixing elements of the staff’s proposed conditions from August 2 with those offered through Bangstad’s private negotiations with the county.

The passage of the CUP raised new concerns about the legality and appropriateness of the process. Questions have been raised about the county attorney’s private negotiations with Bangstad’s attorney rather than open session deliberations; as well as whether the county board, which has no jurisdiction over CUPs, discussed the issue in closed session. 

Last week, too, supervisor Tommy Ryden questioned whether the meeting was a new conditional use permit application that needed to be posted as such — counsel said it was a revised permit — and, in a surprise, during the meeting, Oneida County zoning director Karl Jennrich said the compromise had not been sent to the town of Minocqua prior to the meeting — the town had recommended denial of the permit — nor had affected property owners been notified, which in the past the county has done as standard practice.

The committee also departed from past practice when it significantly altered the permit application after the public hearing but decided not to send the rewritten application back for a new hearing, which it has the power to do.

Bangstad himself was not present at the meeting, either, nor did any representative speak up for him. The committee professed not to know how Bangstad might react to the newly passed permit conditions.

Mea culpa

Holewinski began the discussion on the CUP by admitting the August 2 public hearing was illegally adjourned.

“So I made a mistake by adjourning that meeting without taking action on a motion,” Holewinski said. “So my determination is that we will pick up from that motion on that floor that day.”

Holewinski proceeded to recap the testimony and events of the public hearing up through the adjournment. That included an exchange with Bangstad, who at the time said he was not going to compromise with the county.

“He brought up that he may file a federal lawsuit against us,” Holewinski said. “We asked him for a compromise and he didn’t want to compromise. We made the motion to deny his CUP. It was a motion and a second and then we were advised by corporation counsel to adjourn the meeting because there were other people coming in and we wouldn’t have had enough time to go through all the stuff and then we adjourned the meeting. That was my mistake for not going back and taking care of the motion at hand.”

After the recap, Holewinski led the committee through each of the standards required for a CUP, asking whether the application met each of those standards, or did not meet those standards, or could meet the standards with conditions.

On every standard, the committee chose the latter, prompting Ryden to quip: “Everything can be done with conditions.”

For example, one of the standards was whether ”adequate measures have been and will be taken to provide ingress and egress as to minimize traffic condition in the public streets.” Almekinder said the application in front of the committee did not meet the standard but Holewinski said it could be met … with conditions.

“The motion was to deny it,” Holewinski said at end of the assessment. “I think that we can basically approve it with conditions at this point. I can’t approve it the way it is, but [we can] if we change what he’s applying for.”

After deciding they could move forward, with conditions, the committee turned its attention to a proposal Bangstad made on September 20, in which he offered three separate alternatives. The committee was most interested in the alternative known as option 3.

After some discussion of that option, which now included the six on-site parking spaces Bangstad has long opposed, the committee turned to the motion at hand — the motion to deny — after corporation counsel Mike Fugle cautioned against confusing that issue with CUP conditions. If the committee wanted to move forward with conditions, he advised, it first needed to defeat the motion on the table.

“If the motion to deny does not pass, then you are back discussing, would you approve a conditional use permit and what would those conditions look like?” he said.

The committee did just that, unanimously.

Using both the August 2 proposed conditions and Bangstad’s proposed “option 3,” the committee began to craft a new set of conditions.

During that discussion, Ryden again worried about proper notification, given the substantial revisions and incorporation of elements from the option submitted by Bangstad after August 2. Fugle replied that everything was proper.

“As I said before, this is, you’ve had Howard Young, when they put in the helipad, the skilled surgical center in Minocqua, both of those were … there’s a public hearing and then there was a long drawn-out process that ultimately resulted in the final product,” he said. “And you didn’t have subsequent public hearings, you didn’t walk around and make sure that everybody had this or that document. And I think in this, actually, with everything being posted on the website, you have provided more than adequate and certainly more than sufficient information to the public regarding this process.”

Ryden asked if the new CUP had been shared with the town of Minocqua.

Several committee members and Fugle said it was a revised CUP, not a new one, but, in any event, Jennrich said it had not been shared.

“This was not sent to the town,” he said. “This was sent to the committee. We sent the agenda to the town but I did not specifically send a separate email to [town chairman] Mark Hartzheim or the town of Minocqua with these plans soliciting their input.”

Ryden followed up by asking about notification of nearby property owners.

“Since we took this new September 20 revision of the conditional use permit, does that have to be properly posted to the neighbors?” he asked.

Jennrich said the nearby property owners had not been notified.

“Not to defend anything, but technically they don’t have to [be notified],” he said. “It’s not a requirement in statute. But as part of the conditional use permit process, frankly, we do notify individuals within 300 feet.”

Fugle made the point that the plans were available to the public on the county’s website.

“It was posted on the county website, which is publicly available,” he said. “The meeting notice did describe the conditional use permit at this location.”

The conditions

Ultimately, the committee crafted a new set of conditions and passed the amended CUP application unanimously.

Among those conditions were standard ones such as the project will have to be substantially commenced within three years of issuance and the nature and extent of the use shall not change from that described in the CUP.

Bangstad must obtain all required permits, including town and DOT permits — that includes access from Hwy. 51 to comply with DOT requirements — and signage must comply with county sign regulations.

And then there were those conditions that emerged from Bangstad’s submitted compromise.

Specifically, the site layout shall be one way, exiting on Front Street. Traffic flow must be presented, and signage and pavement markings shall be required to indicate traffic flow and approved parking.

In addition, the town of Minocqua must review and approve the stormwater management plan, which is to include pervious pavers for the beer garden. At the meeting, Jennrich said drains for the stormwater system had been installed but the area must be paved for the system to work.

Bangstad must also enter into an agreement with the town of Minocqua permitting access across a portion of town road right of way.

As for parking, there would be two parking spots on the north end of the property, one being an ADA parking spot between East Front Street and the building. There would be three parallel parking spots on the site on the east side next to the so-called “pork chop”; there would be one parking spot on the south side.

A dumpster area on the south end must be enclosed and screened from public view, and, if Bangstad wants a food truck, a peddlers license from the town of Minocqua must be obtained for any food truck, whether his own or a contracted vendor.

Finally, all of the conditions must be met prior to allowing outdoor seating or allowing any outdoor activities, and no outdoor seating will be allowed except within the beer garden.

“We want him to complete the driveway, the access points, the dumpster area, and the beer garden before he does outdoor seating,” Holewinski said.