Oneida zoning orders Bangstad to cease outdoor activities

The Oneida County zoning department on Monday ordered Kirk Bangstad to cease all business activities associated with a conditional use permit that the county revoked earlier this year, a directive that effectively shuts down all outdoor activities at Bangstad’s Minocqua Brewing Company.

The September 23 letter came in the wake of a short court order issued September 17 by the Wisconsin district III court of appeals, in which judges denied Bangstad’s and the Minocqua Brewing Company’s (MBC) petition to appeal an Oneida County circuit judge’s decision to deny Bangstad’s bid for an injunction prohibiting the county from shutting down his business by revoking his conditional use permit (CUP).

The appeals court did issue a temporary injunction on July 15 prohibiting the county from enforcing any CUP revocation until the litigation was settled. 

Last week, though, the court ruled that Bangstad’s petition failed to satisfy the criteria for permissive appeal and so the petition for leave to appeal was denied and the temporary injunction lifted.

A permissive appeal is an appeal from a judgment or order issued by the circuit court before the case is finished, otherwise known as a “nonfinal judgment” or “nonfinal order.” The procedure for filing a permissive appeal is different from a regular appeal because a person must ask the Court of Appeals for permission to appeal before the appeal can proceed, the Wisconsin state court system states.

In this case, then Oneida County circuit judge Michael Bloom refused to dismiss a major zoning complaint that alleged multiple permit violations by Bangstad, and he also declined to issue an injunction prohibiting the county from shutting down his outdoor business by revoking the CUP.

The very next day the county’s zoning committee did just that — revoke the conditional use permit (CUP) — citing ongoing violations. 

In the wake of those setbacks, Bangstad filed a motion for relief in the state’s appeals court. The appeals court enjoined the county from enforcing the CUP revocation until further order by the court, which came September 17.

How it started

In April, the county filed a long-form complaint for forfeitures against the 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 permit conditions that did not allow for outside seating and service. Ultimately, the committee revoked his administrative review permit (ARP), but Bangstad continued to operate. 

Bangstad later received a conditional use permit (CUP) but allegedly failed to meet those conditions before operating outdoors, yet another permit violation that led to the county’s revocation of the permit.

In July, presiding judge Bloom rifled through the reasons he was not dismissing zoning citation related to the violations.

For one, Bangstad and his attorney, Frederick Melms, argued that the county had failed to state a claim for which any relief could be granted, 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 permit, alleged violations of the 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 defendants also challenged the complaint 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 US 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.

Bloom disagreed.

Bangstad testified that could potentially suffer $400,000 worth of damages because he would not be able to operate his tap room, 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.

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 the activity in which he was operating under his 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,” he said. “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.

How it’s ending

In the letter to Bangstad ordering him to cease operations associated with the CUP, county zoning director Karl Jennrich wrote that, after being issued the CUP on October 6, 2023, the zoning committee scheduled a revocation/suspension hearing for July 24, 2024, at which zoning staff presented its evidence.

“This documentation showed dates that staff observed violations of [the CUP] and included correspondence between this department and you, as well as your attorney regarding compliance issues for [the CUP],” Jennrich wrote. “At the public hearing, the planning and development committee reviewed the documentation provided by staff and listened to testimony from attorney Melms and the public concerning amending, suspending or revoking [CUP].”

The committee then proceeded to revoke the CUP based on the evidence of past and ongoing violations of its conditions. 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 the letter to Bangstad this week, Jennrich cautioned Bangstad that each day violations continue could be considered a separate and distinct violation for which the department could seek forfeitures in court.

He also advised Bangstad that he has a right of appeal to the county’s board of adjustment. He has 30 days to do so.