Appeals Court Sides With Shipwrecked on Beer Garden

A state appeals court in December affirmed a 2022 circuit judge’s ruling that Shipwrecked in Egg Harbor should be allowed to expand and develop a beer garden, because the village Plan Commission violated the ownership’s due-process rights when denying a permit in 2021. Submitted.

Court says the Village of Egg Harbor violated the restaurant’s due-process rights

The Village of Egg Harbor suffered a legal loss this month as it continued to defend its 2021 denial of Shipwrecked Brew Pub’s beer garden-expansion permit.

The Wisconsin Court of Appeals on Dec. 12 affirmed County Circuit Court Judge Todd Ehlers’ 2022 finding that the Egg Harbor Plan Commission violated the due-process rights of the Shipwrecked owners (Sojenhomer LLC), when the commission voted 4-2 in 2021 to deny a conditional-use permit (CUP) that would have allowed the business to add a 92-seat outdoor pub on the site of the former Christine’s Casuals property.

James Kalny, attorney for the Village of Egg Harbor, said he was not in a good position to comment on the appellate affirmation. He also declined to comment on what steps the village could take next. He said he would need to hear an opinion from “insurance counsel.”

Village Administrator Megan Sawyer did not comment on the appeals case and confirmed that the village board will need to meet in closed session with special counsel. Shipwrecked owners and management did not immediately respond with comment.

Ehlers never questioned the Plan Commission’s reasons for denying the permit, which included increased seating coupled with a lack of parking in the village center, safety concerns and lack of compatibility with the village’s comprehensive plan.

The village did not base its appeal of Ehlers’ decision on Sojenheimer not getting a fair hearing from the Plan Commission on the CUP application, according to the appeals court document. Rather, the village appealed the court’s “order to unconditionally grant the conditional use permit instead of other available remedies.”

The Court of Appeals concluded: “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 Court of Appeals backed Ehlers’ key finding that revolved around the actions of two Plan Commission members.

“The well was so poisoned against [Sojenhomer] and [the] application, no amount of curative efforts can remove that blight,” Ehlers wrote, and the Wisconsin Court of Appeals confirmed. 

The “poisoning of the well” occurred at a time when residents were expressing opposition to the project and its effects on parking and traffic. 

The Shipwrecked owner noted that a GoFundMe page titled “Smart Growth Egg Harbor” was created as a “fund to contribute to attorney fees for Egg Harbor and business owners looking to keep village ordinances upheld.” The GoFundMe page contained a photo of the village’s sign and changed the name Egg Harbor to “KEG Harbor.” Plan Commission members Jon Kolb and Chris Roedl individually contributed to the GoFundMe page.

Kolb and Roedl recused themselves “at high risk of bias” from a hearing on a revised plan by Shipwrecked, but then “ended up materially involved in the hearings and, as a result violated Sojenheimer’s right to a fair and impartial hearing.” Kolb later rejoined the commission.

On appeal, the village suggested that the Plan Commission based its decision largely on the calculation that the expansion of capacity indoors and outdoors to 394 people would require the business to provide 100 more parking spaces. The village asserted that the Plan Commission’s criteria for evaluating 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.” 

The Court of Appeals affirmed, however, that Kolb’s involvement and “Roedl’s behind-the-scenes arguments” influenced Plan Commission members. Further, the appeals court asserted, the village “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 Court of Appeals concluded that “there was no way to afford [Shipwrecked] a fair and impartial hearing on remand” to the higher court.