Judge dismisses Bangstad motions in zoning cases

It was a double whammy in Oneida County circuit court last week for Minocqua Brewing Company owner Kirk Bangstad, as circuit judge Michael Bloom thwarted Bangstad’s efforts to have a major zoning complaint against him dismissed and to have the circuit court issue an injunction prohibiting the county from shutting down his business by revoking his conditional use permit.

It became a triple whammy the next day when the county’s zoning committee did just that — revoke the conditional use permit (CUP), that is — citing ongoing violations. 

In the wake of those setbacks, Bangstad filed a motion for emergency temporary relief in the state’s appeals court. 

That court has set deadlines for the production of the circuit court’s written order to deny the injunction and a timeline for Bangstad to file his petition for leave to appeal, as well as the county’s response, and it enjoined the county from enforcing the CUP revocation until further order by the court.

The county could respond to the motion for emergency temporary relief now or with its response to the motion for leave to appeal.

In April, the county filed a long-form complaint for forfeitures against the Minocqua Brewing Company (MBC) and Bangstad, seeking fines for a long string of alleged zoning violations that by some estimates would top $28,000.

The complaint had been in the works for months after the zoning committee voted unanimously to seek the fines in January. Zoning staff cited Bangstad on multiple occasions for violating his administrative review permit (ARP) that did not allow for outside seating and service. Ultimately, the committee revoked the permit, but Bangstad continued to operate. 

In court last week, Bloom rifled through the reasons he was not dismissing the zoning complaint.

For one, Bangstad and his attorney, Frederick Melms (no association with Melms, Hogan & Francois law firm), argued that the county had failed to state a claim for which any relief could be granted — had failed to present facts sufficient to indicate a violation of law — but Bloom said that was obviously not the case, as the complaint itself set forth a factual basis for a claim — the existence of a conditional use permit, alleged violations of the conditional use permit, and a request for forfeitures. 

Bloom pointed out that Bangstad had not really submitted a response or pleading to the county’s complaint, only motions that amounted to affirmative defenses to the allegations, all of which Bloom said could be potentially successful at trial. 

However, Bloom stated, that did not negate the fact that claims were alleged for which relief could be granted.

The complaint was also challenged on grounds of timeliness, but Bloom dismissed that as well.

“The language of the [code] itself requires expeditious review by the corporation counsel,” Bloom said. “… The ordinance itself does not set any time limit or necessarily even indicate that citations or complaints or other enforcement actions in court or otherwise be commenced at any particular time, merely that the matter is to be reviewed expeditiously by the corporation counsel.”

Bloom said state statutes establish a two-year statute of limitations for such enforcement actions, but the complaint was well within that framework.

Bangstad also asserted that the zoning requirements were arbitrary and unreasonable and had no substantial relation to the public health, safety, morals, or general welfare, but Bloom determined that municipalities have a legitimate interest that implicates the health, safety, morals, and general welfare of the public when it comes to regulating the time, manner, and location in which alcoholic beverages are sold, served, and consumed in the community. 

“The respondents operate a business in the downtown area of the town of Minocqua, directly on the northbound component of U.S. Highway 51, which is not only the main thoroughfare through the town of Minocqua, but also the primary arterial highway for all north central Wisconsin,” Bloom said. “There is simply no basis in the record upon which the court could find that the terms and conditions of the respondent’s conditional use permit have no substantial relation to the public health, safety, morals, or general welfare, and certainly not that the entire Oneida County zoning scheme does not.”

Bangstad raised a First Amendment issue, namely, that the zoning ordinances constituted a prior restraint on speech, that is, a content-based restriction prior to its occurrence. Among other things, Bangstad asserted that the court could view a conditional use permit as a license granting a business the right to engage in First Amendment-protected activity through such activity as outdoor displays or rallies, but that the approval process is too discretionary.

But, Bloom said, the applicant agreed to the terms of the CUP — that all conditions be met before serving in the outdoors beer garden — and that no condition of the conditional use permit granted regulated the content of any expressive activity. 

“The respondents have not made the requisite showing to meet the high standard required for the court to find that the county’s zoning scheme is unconstitutional or constitutes a prior restraint on speech,” Bloom ruled in denying the motion to dismiss.

As for the preliminary injunction, Bloom ruled that Bangstad’s motion failed to establish a necessary criterion, specifically, that he would suffer irreparable harm if the county shut him down.

Bangstad testified that he could potentially suffer $400,000 worth of damages because he would not be able to operate his taproom, but Bloom said Bangstad’s alleged harms were things that could be compensated by damages if Bangstad prevailed against the county. 

“One of the potential results of this proceeding is that if the respondents prevail, that a damage judgment could be awarded to compensate the respondents for their lost revenue, whether it be along with potentially other damages for things such as goodwill, along with an injunction prohibiting the county from not allowing Mr. Bangstad to operate under the terms of his conditional use permit without being unreasonably nickel-and-dimed with enforcement actions,” the judge said. “That’s all potentially available at the end of the day in these proceedings.”

Bloom also determined that Bangstad’s failure to be able to operate under the terms of the CUP, if established by the court, blew apart the irreparable harm argument.

“If someone is not able to do it [operate] under the terms of the permit, how can someone suffer irreparable harm for not being able to engage in something that they’re not legally allowed to engage with under the permit?” Bloom asked.

Can yammer, so no hammer

As for First Amendment issues, on the stand Bangstad described himself as more of a political activist than a businessman, and that his business provided a “safe place” for people to drink beer and talk about politics, but Bloom found that requiring Bangstad to meet the conditions of the CUP did not restrain that speech.

There is really nothing in the record to indicate that Bangstad would not continue speaking his mind about various issues and progressive causes, Bloom observed.

“There’s nothing in the record from which I can find, nor do I believe, based on everything that’s happened in this case, that Mr. Bangstad is going to stop speaking his mind, whether that be through social media or when he is gathered with individuals in whatever location, or through political advocacy, billboards, podcasts, or you name it,” he said. “And there’s nothing in the record for me to find that any of that is going to stop.”

Indeed, Bloom continued, the only activity that was going to be curtailed was his ongoing operation under the conditional use permit before the conditions of the conditional use permit were met. 

“And a person is not entitled to do that,” he said. “And the fact that an individual may not express themselves in whatever time, location, and manner that they choose is not a First Amendment violation. And so, …  I’m finding that there’s no basis in the record for me to find that Mr. Bangstad has actually been put off his game in terms of his political expression or other expression.”

The fact that he couldn’t exercise his speech by way of operating under his conditional use permit before the conditional use permit conditions were met is not a violation of his rights, Bloom determined, and so he denied the injunction on the grounds that he could not show irreparable harm.

The following day, the zoning committee voted unanimously to revoke Bangstad’s CUP. Supervisor Dan Hess made the motion, which passed unanimously. 

Hess said the motion was based on violations of the CUP conditions, including the fact that proper building permits were not obtained prior to the revocation hearing; that highway access from Hwy. 51 had not been completed, either; that a required one-way traffic flow had not been completed; that a compliant parking space has not been provided; and that three required parking spaces along the east property line were not created, as well as one parking space along the south property line.

Hess’s motion also cited lack of evidence of required storm water management, and, most important to the committee, that all of the aforementioned conditions had been met prior to allowing outdoor seating or allowing any outdoor activities.

In addition to the appeal of the injunction denial in the appeals court, Bangstad can also appeal the zoning committee’s decision to the county’s Board of Adjustment. In the zoning court case, a hearing has been scheduled for September.

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