Judge denies temporary injunction against Bangstad

Saying he was not judging the merits of the case, Oneida County circuit judge Michael Bloom on Monday nonetheless said Oneida County did not meet the criteria for a temporary injunction that would have immediately shut down Kirk Bangstad’s Minocqua Brewing Company.

The county was seeking to have Bangstad closed while the county’s case against him plays out in court. 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 this week, Bloom observed that, under Wisconsin statute, the party seeking a temporary injunction must demonstrate four elements: 1) the movant is likely to suffer irreparable harm if a temporary injunction is not issued; 2) the movant has no other adequate remedy at law; 3) a temporary injunction is necessary to preserve the status quo; and 4) the movant has a reasonable probability of success on the merits.

Bloom said most bids for temporary injunctions home in on the fourth element — the reasonable probability of success on the merits.

“But, to get to the fourth element, you have to get through the other three,” Bloom said.

And therein lay the county’s problem.

For his part, county corporation counsel Michael Fugle said allowing Bangstad to continue to flagrantly violate his permit, as the county is alleging, would render the county’s zoning code toothless.

“[The irreparable harm would be ] the county’s inability to enforce any zoning law, frankly,” Fugle said.

Furthermore, Fugle observed, Bangstad would be unable to complete the conditions of his permit — which he is required to do before operating outdoors — while he is open for business.

“For two years he has not complied with virtually any condition of his permit,” he said. “The county has repeatedly requested compliance. He is flaunting the county’s inability to enforce its zoning law.”

The zoning law is toothless if someone refuses to comply and continues to operate, Fugle said.

Bloom categorized the corporation counsel’s argument about irreparable harm as kind of “amorphous.” For comparison, the judge offered up a hypothetical example of actual irreparable harm — a disputed property line along which there were 90-year-old trees, the ownership of which was claimed by both property owners.

One property owner wanted to preserve the trees, while the other wanted to cut them down, Bloom conjectured.

In such a case, the judge opined, a temporary injunction would be in order to prevent any tree-cutting while the case was adjudicated because, in Bloom’s words, “you would not be able to glue the trees back” if the preservationist litigant prevailed.

So the judge wondered if the county’s harm was really irreparable, observing that, at the end of the day, the court would make a decision about the charges filed against Bangstad, and, if guilty, his day of accountability would come.

Bloom also disputed that the county lacked any other adequate remedy at law, noting that the county had already scheduled a hearing — three days later, in fact — to consider revoking Bangstad’s conditional use permit (CUP) application.

Fugle said the goal was to get Bangstad to comply with the CUP, not revoke it.

“If the committee revokes the CUP, there will be continued violations,” he said. “The endless fines for violations are just factored into the cost of doing business.”

Indeed, Fugle argued, if local business owners determine that it’s less expensive to rack up fines rather than to comply with the code — if that is the new mechanism — then the whole zoning process would be turned on its head.

But, Bloom countered, with a permanent injunction that would impose penalties, “you have something in place that would serve your ends.”

And then there was the third criteria — a temporary injunction can only be granted if it is necessary to preserve the status quo during the case proceedings. Again, that would be appropriate in the tree example Bloom used, for the status quo would be to preserve the trees while ownership was determined.

But that was not the case in this proceeding, Bloom said.

“Here, the status quo is the problem,” he said. “The status quo is the allegation of ongoing violations. So a temporary injunction is not necessary to preserve the status quo. What is being sought is to change the status quo.”

Bloom emphasized that, in making his ruling, he was not making a value judgment on the ongoing allegations of violations of the zoning code by Bangstad.

“But if I am going to apply the law as written, it is not a question before this court of what should or should not happen, or who is the good guy or who is the bad guy,” he said. 

The bottom line was, Bloom concluded, the statutory criteria for granting a temporary injunction had simply not been established.

Bangstad’s attorney, Frederick Melms, observed that he was filing a motion for a temporary injunction of his own — to prevent the county from shutting Bangstad and MBC down at the hearing being held later in the week to consider revoking the conditional use permit.

Bloom said that was not a matter before his court and had not been properly noticed for the current hearing. He advised Melms to schedule a hearing, which had not been scheduled by the time of this writing.

In the county’s ongoing case of complex forfeitures against Bangstad, a motion hearing is scheduled for July 23 and a summary judgment hearing has been scheduled for September 25.