Maiman sues county in federal court
County seeks to stop offsite parking
By Robert Cloud
Jeff Maiman, owner of the Wheelhouse Restaurant, has sued Waupaca County in federal court.
Maiman is asking the U.S. Eastern District Court of Wisconsin to rule that the restaurant’s offsite parking constitutes a legal, non-conforming use.
Filed under Maiman Real Estate LLC, which owns and leases the property to Wheelhouse, the civil complaint asserts the county violated Maiman’s equal protection rights and caused him to sustain economic harm.
While Maiman is suing the county, the county is suing Maiman in Waupaca County Circuit Court for a restraining order to keep him from using the lot.
The county also cited Maiman for violating the zoning ordinance that prohibits offsite parking on that property.
Employees are currently parking on the lot, located on Pleasant Park Lane about one-quarter mile from the restaurant.
In its civil complaint against Maiman Real Estate, the county is seeking penalties for each day Maiman refuses to comply with the zoning ordinance. The county’s one-day citation filed on June 2 is for $389.
County OKs parking lot
According to Maiman’s civil complaint, his real estate broker contacted county Zoning and Planning Director Ryan Brown prior to Maiman buying the parcel where the offsite parking lot is now located.
The Wheelhouse is a popular restaurant located on the Chain O’ Lakes. During the summer, the parking lot is often filled to capacity.
Brown told the broker a portion of the wooded four-acre parcel could be used by the restaurant for employee parking, the complaint says.
Maiman later contacted Brown to confirm for himself that he could use the Pleasant Park Lane property for parking.
“Maiman advised Brown that Maiman Real Estate would not purchase the property unless a portion of the property could be used for employee parking,” the complaint says.
Maiman says he and Brown also discussed the fact that the Wheelhouse Restaurant had used another property in the same area and with the same zoning classification for offsite employee parking for several years. Both properties are zoned as sewered residential.
Maiman says Brown again told him he could use the property for employee parking.
Maiman acquired the property on April 3, 2015.
Neighbors question decision
On June 17, 2015, James and Lorraine Koeper, who live on Pleasant Park Lane, sent a letter to Brown regarding the proposed parking lot.
Koeper noted the Waupaca County Zoning Department “has taken the position that (the parking lot) would be permitted under the current zoning regulations and that nothing further needs to be considered on the matter. I am a retired corporate attorney and, while I never practiced zoning law, my reading of the zoning ordinance is just the opposite.”
In her email, Koeper wrote, “The use of residential property as a parking lot for a separate commercial business property is not listed as a permitted use for residential property and, therefore, that use would require a conditional use permit.”
On June 25, 2015, Brown and county Corporation Counsel Diane Meulemans responded to Koeper that the proposed parking lot “does not represent a departure from future residential use nor does it conflict with the surrounding residential uses.”
Noting the zoning ordinance states land uses that are not specifically listed are not necessarily excluded from a given district, their letter said, “This gives our department necessary latitude to apply some subjectivity where specific regulations do not exist.”
On July 13, Maiman submitted a site plan to Brown for approval. The site was designed to accommodate 30-40 cars.
Maiman then began removing trees, grading the property and adding fill dirt. Except for the entrance, the lot is screened by the trees that were not removed.
On Aug. 7, attorneys representing families who live on Pleasant Park Lane sent a letter to Brown regarding the proposed parking lot.
They asked Brown to immediately notify Maiman that he could not move forward on the parking lot. They asked that the Wheelhouse’s proposal go through the normal approval process with supporting documentation and that there be public hearings.
On Aug. 20, Brown and Meulemans met with the Zoning Committee, discussed the Koepers’ objections and confirmed the Wheelhouse could use a portion of the property for parking.
On Sept. 18, Brown sent a letter to Maiman indicating his “project requires no authorization via the Waupaca County Planning and Zoning Office or administrative Committee’s permitting or rezone process in order to proceed.”
In the letter, Brown says the ordinance “does not clearly and unambiguously prohibit your intended project to be completed on the parcel, nor does it clearly indicate a permit is necessary for the intended project.”
Brown also advises Maiman that “this administrative determination may be appealed to the Board of Adjustment.”
On Sept. 24, 2015, attorney Thomas Gartner appealed Brown’s decision on behalf of James and Lisa Pekar, who live on Pleasant Park Lane.
Their appeal was subsequently dropped because the county amended the zoning ordinance.
County amends zoning ordinance
On Dec. 22, 2015, Brown sent a letter to Maiman regarding the county’s revised interpretation of the ordinance.
The county had hired Andrew Phillips as outside counsel on this zoning issue.
“While the zoning ordinance does not outright prohibit the proposed employee parking lot, the lot cannot be permitted as a matter of right,” Brown wrote.
Brown also noted the “Planning and Zoning Office is in the process of proposing amendments to the existing zoning ordinance, which would make uses such as you have proposed subject to a conditional use permit.”
The zoning office subsequently proposed amendments that would have allowed the county to issue conditional use permits for offsite commercial parking on any parcel in the county.
The county also received two other petitions for amendments from the town of Dayton and two homeowners on the Chain O’ Lakes, Lorraine Koeper and Sharon Peterson. These petitions sought more restrictive zoning for offsite parking.
After a May 5, 2016, public hearing, the Planning and Zoning Committee voted unanimously for amendments that required offsite parking to be within 500 feet of the property it serves and to be within the same zoning district.
The Waupaca County Board approved the amendments on May 17.
Under the revised zoning ordinance, the Wheelhouse’s offsite parking lot was a prohibited land use.
However, Maiman contends in his civil complaint that Brown, Muelemans and zoning committee members indicated offsite commercial parking lots in existence prior to the amendments “would be grandfathered, and their use could continue as legal non-conforming uses.”
Maiman’s complaint also notes there are other businesses on the Chain O’ Lakes with offsite parking that are prohibited under the revised zoning.
County, Maiman go to court
On May 23, Brown sent a letter to Maiman warning him to “cease and desist all actions related to the use of this property as an offsite parking lot.”
Also on May 23, Maimen filed a notice of claim for declaratory judgment against the county, claiming losses in excess of $50,000. The notice of claim is the first step taken in civil cases against municipalities.
On June 6, Waupaca County corporation counsel filed a $389 citation against Maiman Real Estate for having offsite parking in a prohibited zoning district.
On June 8, the county Finance Committee denied Maiman’s claim for damages.
On June 23, Maiman filed a suit against the county in Waupaca County Circuit Court.
On July 8, Waupaca County filed a suit against Maiman in circuit court, seeking an injunction against him.
On Aug. 3, Maiman sought a change of venue and transferred his case from the county to the U.S. Eastern District Court of Wisconsin.