Sojenhomer LLC v. Village of Egg Harbor

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 12, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP1991 Cir. Ct. No. 2021CV129
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
SOJENHOMER LLC AND 7783 STH 42 LLC,
PLAINTIFFS-RESPONDENTS,
V.
VILLAGE OF EGG HARBOR AND VILLAGE OF EGG HARBOR PLAN
COMMISSION,
DEFENDANTS-APPELLANTS.
APPEAL from a judgment of the circuit court for Door County:
D. T. EHLERS, Judge. Affirmed.
Before Stark, P.J., Hruz and Gill, JJ.
¶1 STARK, P.J. In this zoning case, Sojenhomer LLC and 7783 STH
42 LLC (hereinafter, Sojenhomer) challenge the Village of Egg Harbor Plan
No. 2022AP1991
Commission’s1 denial of a conditional use permit (CUP). The Plan Commission
denied the CUP on the basis that the CUP application’s proposal would exacerbate
existing traffic safety and congestion problems and therefore did not promote the
public safety and welfare of the Village’s residents.
¶2 On certiorari review, the circuit court concluded that the Plan
Commission did not proceed according to law when it denied Sojenhomer’s CUP
application. Specifically, the court found that Sojenhomer’s right to a fair and
impartial review of its CUP application had been violated by the involvement of
two members of the Plan Commission who had demonstrated prior bias. It further
determined that the due process violation could not be cured on remand. The
court therefore reversed the Village’s decision and directed that the CUP be
granted unconditionally. The Village appeals from the court’s reversal.
¶3 On appeal, the Village does not contest that the bias of two of the
Plan Commission members affected its decision or that Sojenhomer’s procedural
due process rights were violated. Instead, the Village argues that the circuit court
erroneously exercised its discretion by ordering that the CUP be granted
unconditionally as a remedy, rather than choosing from a variety of alternative
remand options. Because we conclude that the court reasonably exercised its
discretion under the facts in this case by remedying the violation of Sojenhomer’s
due process rights through the unconditional grant of the CUP, we affirm.
1
The Village of Egg Harbor delegated the authority to review conditional use permits to
the Village of Egg Harbor Plan Commission (Plan Commission). We refer to both parties as the
Village, unless otherwise noted.
2
No. 2022AP1991
BACKGROUND
¶4 Sojenhomer’s property is currently home to Shipwrecked Brew Pub,
a restaurant and brew pub, located at the intersection of State Trunk Highway 42
and County Trunk Highway G in Egg Harbor, Wisconsin. In its CUP application,
Sojenhomer proposed to expand Shipwrecked by constructing an addition for an
outdoor beer garden on a previously purchased, adjacent lot. Under the Village’s
ordinances, the proposal required a zoning CUP.2 See DOOR COUNTY, WIS.,
VILLAGE OF EGG HARBOR CODE OF ORDINANCES § 152.025(B)(4) (Apr. 13,
2013).
¶5 In January 2021, Sojenhomer applied for an initial CUP for the
project. The Village denied Sojenhomer’s initial CUP after a public hearing. The
Village’s written decision cited issues with a proposal for Shipwreck’s shared use
of a driveway to allow for “egress from [the] additional parking spots and [the]
beer garden,” which would require the project to be “reconfigured” and would
impact “access, setbacks, parking configuration and impervious surface concerns.”
This CUP application is not at issue in this case.
¶6 According to the Village, Shipwrecked’s “expansion was
overwhelmingly opposed by Village residents,” and the Village received
numerous letters as well as signature petitions objecting to the CUP. The Village
states that “[t]he common complaint was that no new parking was being provided
2
“Conditional uses are for those particular uses that a community recognizes as desirable
or necessary but which the community will sanction only in a controlled manner.” Town of
Rhine v. Bizzell, 2008 WI 76, ¶20, 311 Wis. 2d 1, 751 N.W.2d 780.
3
No. 2022AP1991
for an establishment that was already woefully short of spaces in a highly
congested and parking[-]challenged area.”
¶7 Sojenhomer claims that as a result of the initial CUP application, a
GoFundMe page—titled, “Smart Growth Egg Harbor”—was created as a “fund to
contribute to attorney fees for Egg Harbor residents and business owners looking
to keep our village ordinances upheld.” The GoFundMe page contained a photo of
the Village’s sign changing the name “Egg Harbor” to “KEG Harbor.” There is
no dispute that Plan Commission members Jon Kolb and Chris Roedl3 individually
donated to the GoFundMe page.
¶8 On March 23, 2021, Sojenhomer filed a second CUP application—a
revised version of its initial application—which is the subject of this case.
Sojenhomer sought permission to construct an addition to the current Shipwrecked
building, composed of both kitchen preparation space and storage as well as an
“outdoor facing bar that will operate seasonally.” The project would add
ninety-two additional seats in a landscaped area, but “due to geographic
constraints,” Sojenhomer averred that there was not enough space on the proposed
project site for a large, paved parking lot.
¶9 For “Restaurant-Type Activities,” the Village’s ordinances required
“[o]ne (1) space per four (4) seats + one (1) space per four (4) employees,” which
includes seating “both inside and outside.” CODE OF ORDINANCES
3
Roedl was not a member of the Plan Commission during Sojenhomer’s initial CUP
application review.
4
No. 2022AP1991
§ 152.030(D)(1) (Sept. 13, 2021).4 The application proposed expanding the
Shipwrecked premises to increase the seating capacity to 394 patrons and
accommodate up to 24 staff members; thus, the Village’s ordinances required
Shipwrecked to have 104.5 parking spaces. Based on the record and the Plan
Commission’s numerous discussions, it is unclear exactly how many onsite
parking spaces Shipwrecked had available or would have available after
construction, but it is clear that the construction would not provide 104.5 onsite
parking spaces.5 Accordingly, Sojenhomer proposed three methods—all of which
are permitted under the Village’s ordinances—to make up for Sojenhomer’s
failure to meet the parking requirements, including adding seven onsite parking
spaces, executing a shared use agreement with other nonadjacent properties owned
by Sojenhomer to use these properties’ parking spaces, and paying a yearly fee in
lieu of providing the remaining parking spaces. See CODE OF ORDINANCES
§ 152.030(D)(2)(a)-(c).
¶10 Sojenhomer’s second CUP application was considered by the
Village at two public hearings—on May 11 and August 23, 2021—and at six Plan
Commission meetings—on May 25, July 27, August 23 and 24, September 28, and
October 13. At the May 11 public hearing, both Plan Commission members Kolb
and Roedl recused themselves after Sojenhomer’s attorney addressed the
4
All references to CODE OF ORDINANCES § 152.030 in this decision are to the
September 13, 2021 amendment. We note that during the pendency of these proceedings, this
section was amended, but it does not appear that the previous version of this section was included
in the appellate record. Further, while the amendments to this section do appear to relate to this
CUP application, the amendments do not impact our decision on appeal.
5
The Village admits that the “conceptual conversations [about parking] make the record
confusing.”
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No. 2022AP1991
GoFundMe donations. After recusing himself, Kolb testified at the hearing as a
member of the public.
¶11 During the Plan Commission meetings, the discussion centered
around the parking issue. Sojenhomer was asked to find a way to include more
onsite parking and provide a revised plan, and a number of proposed alternatives
were discussed at the subsequent meetings. As a result, on July 22, 2021,
Sojenhomer filed a Special Development District (SDD) application, requesting
relief from the Village’s setback requirements to construct a parking lot.6
Sojenhomer stated, however, that the SDD application did not amend the second
CUP application, and it was not a resubmittal of that application.
¶12 The August 23, 2021 public hearing addressed both the second CUP
and SDD applications. On August 24 and September 28, the Plan Commission
again met to discuss the applications, and Kolb participated in the discussion.
There is also evidence in the record that despite recusing himself from public
consideration of the application, Roedl was in contact via email with Plan
Commission members during this period, discussing the CUP and his concerns.
¶13 During the September 28, 2021 meeting, the Plan Commission
discussed including a condition limiting the number of additional seats in
Shipwrecked, pursuant to CODE OF ORDINANCES § 152.030(D)(2)(d), which
Sojenhomer opposed, stating that “[c]utting the number of seats in half makes the
6
According to the Village, Sojenhomer also “subsequently submitted shared parking
‘suggestions’ that included the Cape Cod Motel (owned by Sojenhomer and used for employees)
and Fat Louis’s, a shop selling olive oil, which is also owned by Sojenhomer. Both [suggestions]
needed the approval of separate SDD relief from setback requirements to accommodate additional
parking.”
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No. 2022AP1991
project no longer financially viable.” The Plan Commission took a vote on that
issue, and Kolb’s vote caused a tie, so the matter was tabled for another meeting.
Finally, on October 13, the Plan Commission denied the second CUP application
by a vote of 4-2. Kolb participated in the vote and voted to deny the project, and
Roedl abstained from voting.
¶14 The Plan Commission later issued its written findings of fact and
conclusions of law. It concluded that the CUP was contrary to the Village’s
comprehensive plan because “[p]ermitting the expanse of the restaurant at this
location can only serve to exacerbate existing traffic safety and congestion
problems in this area and therefore does not promote the public safety and welfare
of the Village,” the proposed number of onsite parking spaces “is insufficient to
serve the expanse contemplated in the [a]pplication,” and the alternative parking
“fulfillment method[s] provided in the application [are] not acceptable” for various
reasons. The Plan Commission denied both the CUP and the SDD.
¶15 On November 24, 2021, Sojenhomer filed this action with the circuit
court, asserting a claim for certiorari review of the Village’s denial of the CUP.
After reviewing the entire record in the matter, the court issued its written
decision, concluding that the Plan Commission did not proceed according to law
and reversing the denial of Sojenhomer’s CUP application. According to the
court, “there were two Plan Commission members”—Kolb and Roedl—“who
initially recused themselves due to a high risk of bias”; “however, these Plan
Commission members ended up materially involved in the hearings and, as a
result, violated Sojenhomer’s right to a fair and impartial hearing.” The court
continued,
It is undisputed that Sojenhomer’s project complied with
all the Village of Egg Harbor’s ordinances…. In spite of
that fact, a review of the entire record in this matter makes
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No. 2022AP1991
it clear that Sojenhomer’s right to an unbiased and fair
tribunal of its application was violated. The involvement
and actions of Mr. Kolb and Mr. Roedl had … poisoned the
well. Once that occurred, it’s hard to fathom how that
damage could be undone and that defect cured on remand.
I conclude it cannot.
It therefore ordered “that a conditional use permit consistent with Sojenhomer’s
May 23, 2021[] application be issued by the Village of Egg Harbor.”
¶16 Thereafter, the Village responded with a motion for reconsideration
of the circuit court’s decision. In its motion, the Village argued that the court
failed to consider “all available remedies in exercising its discretion” and that
public policy required reconsideration. After briefing, the court denied the
Village’s motion. The court observed that the Village did not deny that the court
had the authority to reverse its CUP decision, but the court determined that
regardless of any other alleged remand options, “due process and fundamental
fairness” violations are “extremely serious” and “drastic consequences may
result.” According to the court, its decision was based on its finding that “the well
was so poisoned against [Sojenhomer] and [the] application, no amount of curative
efforts can remove that blight.” The Village appeals.
DISCUSSION
¶17 On appeal, the Village clarifies that it “does not dispute” that
Sojenhomer “did not get a fair hearing on its [CUP] application” and that it “does
not appeal the [circuit] court[’]s decision to reverse the [Village’s] denial of the
[CUP].” The Village does, however, appeal the court’s “order to unconditionally
grant the conditional use permit instead of other available remedies for a remand.”
Thus, the scope of our review in this case is different from a traditional appeal of a
CUP denial.
8
No. 2022AP1991
¶18 Typically, our scope of certiorari review is limited to:
(1) whether the municipality kept within its jurisdiction;
(2) whether it proceeded on a correct theory of law;
(3) whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its judgment;
and (4) whether the evidence was such that it might
reasonably make the order or determination in question.
Ottman v. Town of Primrose, 2011 WI 18, ¶35, 332 Wis. 2d 3, 796 N.W.2d 411.
Here, however, the Village does not challenge the circuit court’s conclusion that
the Plan Commission did not proceed on a correct theory of law. See Marris v.
City of Cedarburg, 176 Wis. 2d 14, 24, 498 N.W.2d 842 (1993) (“The phrase
‘acted according to law’ has been interpreted as including ‘the common-law
concepts of due process and fair play.’”);7 see also Miller v. Zoning Bd. of
Appeals of Lyndon Station, 2023 WI 46, ¶¶9, 13, 19, 407 Wis. 2d 678, 991
N.W.2d 380 (stating that adjudicative decisions involve “apply[ing] existing law
7
In Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993), our supreme
court explained:
[W]e recognize that zoning decisions implicate important private
and public interests; they significantly affect individual property
ownership rights as well as community interests in the use and
enjoyment of land. Furthermore, zoning decisions are especially
vulnerable to problems of bias and conflicts of interest because
of the localized nature of the decisions, the fact that members of
zoning boards are drawn from the immediate geographical area,
and the adjudicative, legislative and political nature of the zoning
process. Since biases may distort judgment, impartial
decision-makers are needed to ensure both sound fact-finding
and rational decision-making as well as to ensure public
confidence in the decision-making process.
Id. at 25-26 (footnotes omitted). According to the court, “where established criteria direct the
Board’s fact-finding and decision-making, [the property owner] should expect that a decision will
be made on the basis of the facts and the law. If a Board member prejudges the facts or the
application of the law, then [the property owner’s] right to an impartial decision-maker is
violated.” Id. at 26.
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No. 2022AP1991
to individual facts … like whether to grant a variance or permit a legal
non-conforming use” and “when adjudicative acts are involved, procedural due
process requires impartial decision-makers”).8
¶19 Based on the circuit court’s conclusion that the Plan Commission did
not proceed on a correct theory of law, it then had “three options—affirm, reverse,
or remand for further proceedings consistent with the court’s decision.” Hartland
Sportsmen’s Club, Inc. v. City of Delafield, 2020 WI App 44, ¶12, 393 Wis. 2d
496, 947 N.W.2d 214; WIS. STAT. § 68.13(1) (2021-22).9 The Village does not
challenge the court’s ability to order reversal; instead, it appears that the Village
challenges only the court’s choice between reversal or remand, arguing that the
8
We note that after the circuit court’s decision in this case, Sojenhomer applied for the
expansion of its liquor license to accommodate the new construction, but the Village denied the
liquor license expansion. Sojenhomer LLC v. Village of Egg Harbor Bd. of Trs.
(Sojenhomer II), No. 23-C-44, 2023 U.S. Dist. LEXIS 186920, at *4-5 (E.D. Wis. Oct. 18,
2023). Sojenhomer then filed an action against the Village in federal court, alleging causes of
action under 42 U.S.C. §§ 1983 and 1985 for violations of its equal protection rights, substantive
due process rights, and procedural due process rights and seeking compensatory and punitive
damages for the denial of the CUP and the expansion of the liquor license. Id. at *1-2.
Sojenhomer alleged that the Village denied the liquor license application due to its denial of the
CUP, despite the fact that the circuit court had ordered the CUP be granted unconditionally. Id.
at *5. After briefing before this court was complete, the federal district court issued its decision,
granting the Village’s motion for judgment on the pleadings and dismissing Sojenhomer’s case.
Id. at *21.
We conclude that the federal district court’s decision has no bearing on our decision in
this case. First, we are not bound by federal decisions on issues of state law. See West Bend
Mut. Ins. Co v. Berger, 192 Wis. 2d 743, 755, 531 N.W.2d 636 (Ct. App. 1995). Second, the
federal case addressed different issues and is therefore distinguishable. In the federal case, the
Village challenged Sojenhomer’s procedural due process claim, while in this case, the Village
acknowledges its due process violation and challenges only the circuit court’s remedy. Finally,
we disagree with the district court’s assertion that a CUP is more in the nature of a legislative
decision than an adjudicative decision. Sojenhomer II, No. 23-C-44, at *16-17. The Plan
Commission’s decision here was adjudicative, not legislative, as it involved applying the existing
Village ordinances to the individual facts of the CUP application.
9
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
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No. 2022AP1991
court’s “decision ordering the grant of a [CUP] instead of remanding the matter
back to the Plan Commission to cure the bias issue was an abuse of discretion.”10
(Formatting altered.) “A circuit court’s discretionary decision is reviewed under
an erroneous exercise of discretion standard.” Ness v. Digital Dial Commc’ns,
Inc., 227 Wis. 2d 592, 599-600, 596 N.W.2d 365 (1999). “A reviewing court will
uphold a discretionary decision if the circuit court considered the relevant facts,
properly interpreted and applied the law, and reached a reasonable determination.”
Id. at 600.
¶20 Recently, in Hartland Sportsmen’s Club, we clearly outlined the
standard by which we are to review whether remand is appropriate on certiorari
review. There, we stated:
Remand to the municipality or administrative tribunal
for further hearings is appropriate where (1) the defect in
the proceedings is one that can be cured, but
(2) supplementation of the record by the government
decision maker with new evidence or to assert new grounds
is not permitted. Consequently, (3) “[o]utright reversal is
appropriate when the due process violation cannot be cured
on remand,” which includes cases in which the evidence
failed to support the government’s decision.
Hartland Sportsmen’s Club, 393 Wis. 2d 496, ¶14 (alteration in original; citations
omitted).
¶21 As mentioned, the circuit court determined that by the actions of
Kolb and Roedl, Sojenhomer’s right to a fair and impartial hearing had been
10
Wisconsin courts changed the terminology used in reviewing a circuit court’s
discretionary act from “abuse of discretion” to “erroneous exercise of discretion” in 1992.
See City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d
484 (1992). While the two phrases refer to the same standard of review, id., we urge counsel to
use the correct terminology going forward.
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No. 2022AP1991
violated, and the Village does not challenge that determination. Based on the
court’s review of the evidence in the record, it further concluded that Kolb and
Roedl’s involvement “poisoned the well” and “that damage could [not] be undone
and that defect [could not be] cured on remand.” Thus, the third principle in
Hartland Sportsmen’s Club is applicable: “Outright reversal is appropriate when
the due process violation cannot be cured on remand.” Id., ¶20 (quoting Guerrero
v. City of Kenosha Hous. Auth., 2011 WI App 138, ¶12 n.5, 337 Wis. 2d 484, 805
N.W.2d 127). Reversal was clearly a remedy that was available to the court.
¶22 The Village does not question the remedies available under
Hartland Sportsmen’s Club.11 It argues, instead, that the circuit court erred by
not ordering other options. For example, the Village asserts that the court could
have: (1) “remanded the matter back to the Plan Commission and ordered a new
hearing without Mr. Kolb and Mr. Roedl either as a five member instead of seven
member Plan Commission or a seven member Commission with substitutes for
Mr. Kolb and Mr. Roedl”; (2) “ordered the creation of an entirely new set of
commissioners to rehear the matter”; (3) “remanded the matter to the Village
Board of Appeals” pursuant to WIS. STAT. § 62.23(7)(e)7.b.; or (4) “appointed a
referee or ‘master.’” According to the Village, “[t]here would be no need to
rehear the application. The new decision makers could rely on the existing
record.”
11
The Village does argue that Hartland Sportsmen’s Club, Inc. v. City of Delafield,
2020 WI App 44, 393 Wis. 2d 496, 947 N.W.2d 214, is not a bar to remand. We agree, but we
also recognize that our decision in that case provides a legal basis for our conclusion here that the
circuit court did not erroneously exercise its discretion.
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No. 2022AP1991
¶23 We conclude that the circuit court did not erroneously exercise its
discretion by determining that the alternatives the Village suggests are not viable
options under the circumstances. First, WIS. STAT. § 68.13(1) permits a remand
“to the decision maker.” Based on the plain language of the statute, see State ex
rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110, “the decision maker” in this case is the Plan Commission. Thus,
§ 68.13(1) does not provide a legal basis to remand to another entity, the Village
Board of Appeals, or a referee or master. Second, “a certiorari court cannot order
a municipality on remand to perform a certain act.” Hartland Sportsmen’s Club,
393 Wis. 2d 496, ¶23 (citing Guerrero, 337 Wis. 2d 484, ¶9). The Village cites
no authority for the court to substitute others for duly elected or appointed
members of the Plan Commission. At best, the court could have ordered a remand
to some of the Plan Commission—absent Kolb and Roedl—but the court
considered this option and reasonably concluded that the entire Plan Commission
was tainted.
¶24 In reply, the Village makes the conclusory statement that “any of the
so-called taint from the bias of … Kolb and Roedl is curable by removing and
replacing them on remand.” (Formatting altered.) The Village fails, however, to
develop that argument beyond stating that Sojenhomer’s initial CUP application
was denied, which was before Kolb contributed to the GoFundMe page and before
Roedl was on the Plan Commission, and that Sojenhomer does not challenge the
findings and conclusions the Plan Commission made on the CUP denial at issue
here.
¶25 Neither of those assertions explain how “removing” Kolb and Roedl
would specifically cure the due process violation. The Village cites no authority
or evidence that the due process violation at issue in this case could be cured on
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No. 2022AP1991
remand. Absent evidence to the contrary, we accept the circuit court’s finding that
“the well”—meaning the Plan Commission—“was so poisoned against
[Sojenhomer] and [the] application, no amount of curative efforts can remove that
blight.” Further, to the Village’s point that the CUP application would not need to
be reheard and the new decision makers could rely on the existing record, this
solution would only exacerbate the court’s concerns if the Plan Commission were
to merely rely upon the existing record, where both Roedl and Kolb participated in
multiple hearings. Thus, the court did not erroneously exercise its discretion by
reversing the Plan Commission’s decision and granting the CUP.
¶26 On appeal, the Village advances several additional arguments for
why we should overturn the circuit court’s decision, which we do not find
persuasive. First, the Village claims that the court erroneously exercised its
discretion because it based its reversal and grant of Sojenhomer’s CUP on a
mistake of fact: that Sojenhomer met all zoning requirements. According to the
Village, “[t]he fact remains that Shipwrecked is now woefully short of required
on-site parking and proposes a major expansion without any significant increase in
on-site parking,” and the “court ignored the Commission’s findings and
conclusions.”
¶27 It is true, as noted above, that the circuit court stated that “[i]t is
undisputed that Sojenhomer’s project complied with all the Village of Egg
Harbor’s ordinances.” In support of this proposition, the court cited the Plan
Commission’s chairperson, who opined that “[w]e may agree [Sojenhomer has]
checked all the boxes.” According to the record, a different Plan Commission
member also stated:
I contend they have met the ordinances. What leg do
we have to stand on legally to not allow them to do this
addition? In terms of a [CUP], I don’t think we have a leg
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No. 2022AP1991
to stand on. This will turn into a court battle that we are
going to lose. Two years from now the project is going to
happen. This will cost the Village tens of thousands of
dollars.
Finally, a third member argued,
I think an important part of this is to review the … memo
of the State of Wisconsin statu[t]es …. It demands that we
have reasons to deny this application. I don’t see what
Shipwrecked has not complied with…. Unless someone
comes up with a firm factual reason to deny [the CUP], I
don’t think we can deny it. They have done everything we
have asked.
¶28 The crux of the circuit court’s decision was that there was a clear
violation of the right to an unbiased and fair tribunal and that the violation could
not be cured on remand. As noted, the Village does not challenge the court’s
finding of bias, and it also does not meaningfully argue that the violation can be
cured on remand. The issue is not whether Sojenhomer met all reasonable and
measurable ordinance requirements. The court reasonably considered whether the
CUP met those requirements in weighing the options available to remedy the
violation of Sojenhomer’s rights. The court’s real issue of concern was that
Sojenhomer never had the opportunity to prove to an unbiased trier of fact whether
it could meet the ordinance requirements.
¶29 Based on the above evidence in the record, the circuit court could
reasonably have found that most or all of the Village’s ordinance requirements
were met but that some on the Plan Commission nevertheless did not approve how
Sojenhomer proposed to resolve the parking issues. However, because the Plan
Commission reached that decision based upon the influence of biased Commission
members, the court concluded that Sojenhomer’s due process rights were violated.
In other words, the Plan Commission was absolutely authorized to decide against
Sojenhomer’s CUP for the reasons it stated; however, the Commission had to
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No. 2022AP1991
reach that decision without undue influence, and the court reasonably found that it
did not.
¶30 Second, the Village claims that the circuit court erred because it
erroneously believed that the Village’s review under its zoning ordinances “is
limited to a ‘box checking’ exercise.” According to the Village, a checklist is not
possible because each CUP application is unique and employing one “would
eliminate the flexibility of a conditional use.”12 The Village states that “[t]he
Findings and Conclusions of the Village of Egg Harbor Plan Commission
regarding lack of parking, congestion, negative effect on adjoining properties and
other considerations including public health, safety or general welfare [are] well
within the Plan Commission’s discretion.”13
¶31 We disagree that the circuit court’s reference to the chairperson’s
statement about “check[ing] all the boxes” was a determination that the Plan
Commission’s decision was to be based upon inflexible considerations. Instead,
the court decided that the Plan Commission failed to act fairly and impartially in
exercising its discretion and adjudicating the merits of Sojenhomer’s otherwise
12
We note that the Village’s brief-in-chief, in support of this proposition, attributes a
five-line quotation to our supreme court’s decision in Edward Kraemer & Sons, Inc. v. Sauk
County Board of Adjustment, 183 Wis. 2d 1, 14, 515 N.W.2d 256 (1994). However, the
language quoted by the Village does not appear on the cited page of Kraemer, nor does it appear
anywhere else in that decision. Instead, the Village’s misattributed quote appears to have come
from the Village’s own brief in a previous case before this court in 2011. While Kraemer
certainly provides support for the Village’s assertion that a conditional use procedure must be
flexible, and while the Village is free to reuse arguments from its own previous briefs, we caution
against misattributing language to our supreme court, or any court.
13
Within the Village’s argument, it claims that because Sojenhomer applied for SDD
relief from the setback requirements, “[t]his fact alone demonstrates that [Sojenhomer] itself
knew that it did not and could not check all the boxes.” The circuit court did not address the SDD
relief because it was not submitted with the original CUP application and was not the subject of
the certiorari review of the CUP denial.
16
No. 2022AP1991
sufficient CUP application. Therefore, it concluded that the Plan Commission did
not proceed according to law. The Village does not contest that finding.
¶32 Third, the Village argues that the circuit court’s decision was
“unreasonable because the so-called ‘well’ was poisoned by” Shipwrecked’s
general manager, Joe Smith, “before it was poisoned by … Kolb and Roedl.”
(Formatting altered.) During the review of Sojenhomer’s initial CUP application,
Smith was a Village Board Trustee, was chair of the Plan Commission, and
presented the initial CUP application to the Plan Commission. The Village
explains that participants noted Smith’s “conflict of interest,” and it states—
without citing any direct evidence in the record—that “Smith was aggressive,
argumentative and condescending at the public hearing on May 13.” The Village
cites case law from several other jurisdictions, stating that an official in these
circumstances should not have been permitted to participate in the proceedings at
all. In summary, according to the Village, the court’s failure to note Smith’s
actions, and the fact that he also tainted the proceedings, means the court’s order
“should not stand.”
¶33 We agree with Sojenhomer that the Village’s argument on this point
is a red herring. First, Sojenhomer’s initial CUP application is not before this
court. Second, it is undisputed that Smith was not a Plan Commission member
when the CUP application at issue here was considered. Finally, and overall, the
Village fails to articulate any reason why a former member’s participation in the
discussion about a prior CUP application taints subsequent Plan Commission
proceedings, in which the former member did not participate, that resulted in a
denial of a subsequent CUP. The Village also cites no legal authority for its claim
that any of Smith’s prior actions require the circuit court to ignore the current due
process violation and uphold the denial of the CUP.
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No. 2022AP1991
¶34 Finally, the Village argues that the fact that the circuit court
acknowledged “the drastic nature of this decision,” when it need not have been so
drastic, means that the court’s decision was unreasonable and, therefore, an
erroneous exercise of discretion. The Village asserts that the “court’s drastic
decision severed any consideration of the dramatic and direct impact on
neighboring business properties or the common good and general welfare of the
community.” According to the Village, the “court could have remanded the matter
back to the Plan Commission and ordered a new hearing without Mr. Kolb and
Mr. Roedl …. This is by far the most common and appropriate remedy.”
¶35 We conclude that the Village’s argument on this point is nothing
more than a disagreement with the circuit court’s decision, and it disregards our
standard of review. The record supports the court’s conclusion that some, if not
all, of the remaining Plan Commission members were influenced by Kolb’s
involvement and Roedl’s behind-the-scenes arguments after each had ostensibly
recused themselves. In reply, the Village suggests that “[e]valuating the proposed
expansion for parking requirements involved applying simple mathematics
yielding a clear, objective irrefutable conclusion that the expansion does not meet
zoning requirements. It is inconceivable that this process was or could be tainted.”
But if the Plan Commission’s decision was crystal clear, then it would not have
needed to deliberate the CUP over multiple meetings. Further, this argument
ignores that the second-to-the-last vote on an issue with the CUP application
resulted in a tie due to Kolb’s participation and vote. The possibility that the Plan
Commission was tainted is not inconceivable. Accordingly, the court reasonably
found that although there were other options available, there was no way to afford
Sojenhomer a fair and impartial hearing on remand.
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No. 2022AP1991
By the Court.—Judgment affirmed.
Not recommended for publication in the official reports.
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