Oneida County zoning hammers Minocqua businesses

Even as the Oneida County zoning committee has given downtown Minocqua business owner Kirk Bangstad more time to fashion an acceptable conditional use permit application for an outdoor beer garden despite more than a year of infractions of his now-revoked permit, the county zoning department has lowered the boom on 12 other downtown businesses for alleged noncompliant outdoor activities, ordering immediate compliance and/or the payment of large after-the-fact permit fees.

While Bangstad’s conditional use permit application stems from his resistance to the county’s and town’s parking standards, among other things, the 12 businesses targeted by the zoning department late last month involve alleged minor violations for such things as providing a bench for use by the general public while strolling along main street.

Oneida County zoning director Karl Jennrich issued the letters on August 24, after sending zoning staff around town to search for violations, which range from providing non-service outdoor seating to merchandise displays under story entryways to having a few planters.

Some of the violations — those sent to six businesses with an Oneida Street address — were informed they had various violations for “outdoor operations” and had 10 days to contact the zoning department to discuss the matter. 

They were also told that to keep their displays they would have to get a conditional use permit and pay the zoning department $1,800, or triple the normal CUP fee because it would be an after-the-fact permit.

Six more letters went to other businesses on Front and Oneida streets informing them their seating, displays, or planters were located within the state Department of Transportation (DOT) or town of Minocqua right-of-way, which was forbidden by the Oneida County code.

The letter commanded those businesses to remove the offending “encroachment” immediately and to contact the zoning department within 10 days to schedule an on-site inspection to verify the removal of the displays, plants, or seating.

According to that code provision, on public highways the setback in all areas shall be no less than 20 feet from the right-of way. For properties abutting state highways, the owner must provide proof of compliance from the DOT with respect to any proposed construction either in the right-of-way or setback from such highway, but in no case could the setback be less than 20 feet.

Properties contacted about needing a CUP for their businesses were Taglio Salon, for a small patio table and chairs; Imaginuity, for four small patio-style chairs underneath its covered entryway; The Northern Nest for two chairs and an outdoor merchandise rack underneath its covered entryway, and Ruby’s Chef Shop for an outdoor display; Isla Collective, for outdoor display of merchandise that was off the sidewalk and under the store’s covered entryway; Style North, for a bench, two chairs, and a small folding table; and Hooked & Tagged, for an outdoor display underneath its covered entryway.

Those informed that they had breached the DOT or town of Minocqua right of way were The Loon, for placing two planters, a display, a bench and an Adirondack chair beneath the store’s eaves; Natural Northern, for a table and two chairs; J. Christy’s, for outdoor displays and planters, specifically four planters against the building wall and a sandwich board sign near the entrance; Eagle Wings, for outdoor displays beneath its entryway awning; Kilwin’s, for one bench underneath the store awning; and Glik’s, for outdoor displays and planters. 

It should be stressed that none of the seating in front of the businesses was reserved for use by customers of that business only; all were for the general public visiting the downtown area, and there was no service or sales involving any of the seating.

A fishing expedition

After sending letters to the affected businesses, Jennrich sent an email to Minocqua town chairman Mark Hartzheim and to members of the county zoning committee, as well as to supervisor Billy Fried and Minocqua zoning staff, attaching the correspondence and advising that they were likely to start getting calls.

In the August 25 email, Jennrich said the letters started with a single complaint from Bangstad and then blossomed into a fishing expedition in search of violations in downtown Minocqua.

“The department received a complaint about outdoor seating from Kirk Bangstad for one business,” Jennrich wrote. “The department sent that business a letter. That business then complained in general terms about all the outdoor seating and displays on the island. I asked MI (Minocqua) zoning staff to take a walk and take pictures. Staff researched what we could, to see if CUPs were issued or not. Some of the outdoor displays/seating are on WiDOT ROW [right-of-way].”

Jennrich relayed that, strictly speaking, most of the violations weren’t serious.

“Most of the seating and displays are what I would consider minor infractions, but technically they are violations,” he wrote.  

In part, Jennrich’s assertion involves an expansive interpretation of the Oneida County zoning code. According to the code, conditional use permits are required in the downtown business zoning district for any retail business, office, professional or service establishment that involves a drive-through or drive-in component or has any outdoor operations other than customer or employee parking.

The county code does not define “operations.” However, the Miriam-Webster definition for ‘operation’ is that of “an active process.” That would certainly be the case for serving customers at those tables and chairs, or for extending seating for service operations taking place inside the store; more arguable is whether providing a chair and table or bench for the general public — many of whom would not be customers of those stores — would be considered an “active process” of the business.

The bottom line is, the county code does not explicitly require a CUP for outdoor seating, and it could be argued — and has been argued — that the term “operations” suggests that the critical factor is what those seats and tables are being used for, namely, that the seats would be part of a business operation if they was reserved for store customers and involved the active service of those customers, and not part of the business operations if they were for general public use and no service was involved.

In any event, Jennrich said in his email that he knew blowback might be coming: “Businesses on the MI Island are not going to be happy with me.”

Get in line

Minocqua town chairman Mark Hartzheim wasn’t happy, either. The town chairman said the outdoor seating represented a long Minocqua tradition that was beneficial to the town, and he said the town fully supported the businesses engaged in placing them.

“This is a practice that has been allowed for over 20 years along the downtown main street and immediate side streets for shops whose storefronts are built right to the sidewalk lot line,” Hartzheim told The Lakeland Times. “It was intended to be a sensible and practical way to provide a more relaxing shopping environment downtown.”

Hartzheim made the distinction between small tables and chairs for use by the general public and tables and chairs as part of a business’s operations.

”As long as it was limited to small tables, chairs or benches placed up against the building, and they are completely open and available for anyone to use — not ‘customers only’ and not for purposes of outdoor service or advertising — this was looked at as a beneficial amenity for the general shopping public and the town has had no issues with that,” he said. “To my knowledge, neither has WisDOT or the county.”

Hartzheim told The Times last week that he believed the DOT OK’d the practice within its right-of-way years ago, but he said that was before his time as town chairman and he did not have written verification. However, he said was reaching out to the DOT.

Hartzheim also said the county has failed to handle downtown Minocqua zoning issues effectively or adequately, especially the Bangstad issue and the controversies stemming from it, and he pointed at advice coming from the county’s corporation counsel as one reason why.

“I believe that the county zoning department has mishandled this matter on numerous occasions,” he said. “Its prolonged strategy of inaction has created the very situation it now finds itself in. I’m sure committee members have felt obligated to lean on, in my view, weak-kneed advice from its legal counsel, which has never sought context from the town. Multiple hours-long hearings have been adjourned at the same place where they started, and the can gets kicked further down the road.”

Hartzheim also said he did not learn of the enforcement letters until Jennrich’s after-the-fact email advising him that they had been sent, and he expressed frustration about the lack of communication from the county. A phone call might have resulted in a different outcome, Hartzheim said.

“The county and the towns within it are all stakeholders with respect to decisions made on permits and other zoning decisions,” he said. “The towns are often more affected by the repercussions of zoning decisions than the county.”

As such, Hartzheim said, communication with the town was vital to provide context and information the county might not be aware of, and, as such, he said it was incumbent upon the county to discuss matters with the town before taking action.

“It’s important that the county zoning department and towns confer and coordinate as much as possible, so the county zoning department isn’t flying blind and has a full perspective of matters related to permit applications in any town before acting,” he said. “From Minocqua’s point of view, it seems that legal counsel for the county zoning department has discouraged this needed coordination over the past year.”

As of press time, the clock was still ticking on the zoning department’s demands, and it remained to be seen whether the county would compel the removal of public benches and seats from the downtown shopping area if businesses did not pay the zoning department thousands of dollars.

Also as of press time, Hartzheim said the DOT had not yet weighed in on the matter, though he has reached out to them for their comments.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.