Failure to appeal original determination of permit violation prevents revisiting original permit conditions

by Kaitlin Heinen and Gary Taylor

Eric and Deborah Ringsred v. City of Bayfield, Wisconsin
(Wisconsin Court of Appeals, May 21, 2013)

In 2006, Eric and Deborah Ringsred were granted a conditional use permit to operate a bed and breakfast located in an R-1 residential zoning district in the City of Bayfield, Wisconsin. One of the conditions required a separate cottage to remain vacant until the City was notified the cottage was to be used for habitation. On September 8, the Ringsreds notified the City that they planned to use the cottage as an accessory dwelling. On September 19, the City’s attorney told the Ringsreds that the cottage could not be used as such for the bed and breakfast unless another conditional use permit was obtained, as required by the City’s ordinances. However, the Ringsreds did not apply for an additional conditional use permits regarding the cottage.

On July 2, 2009, the City’s zoning administrator notified the Ringsreds that it had “come to the City’s attention the cottage was occupied during a portion of this past year…[The City] respectfully request[ed] [the Ringsreds] to respond to this issue in writing prior to the Commission’s next meeting on July 20, 2009.” The Ringsreds responded, stating that during the “non-B&B period of the year,” someone needed a place to stay and was allowed to stay in the cottage, but it was not a “rental situation.” In August and September 2009, the City of Bayfield Plan Commission convened a hearing in regards to the alleged permit violations, which the Ringsreds attended. On September 15, 2009, the Commission issued a decision, which held that the Ringsreds had violated the conditional use permit by allowing the cottage to be used as a dwelling. The Commission upheld the requirement that the cottage remain vacant and that an application need be completed for it to be used as an accessory dwelling. The Commission also required that the Ringsreds respond in writing that they would not use it as a dwelling without complying with this requirement, which the Ringsreds promptly did.

In September 2010, the City investigated another complaint that the cottage was being used as a residence. A hearing was held on November 9, 2010, where evidence established that the cottage had been occupied during the summer of 2010. The Commission decided that there was no reasonable modifications of the conditional use permit that could be made to assure compliance, so the Commission voted to revoke the permit.The Board of Appeals upheld this decision at a February 15, 2011 hearing. The circuit court later affirmed the Board, so the Ringsreds appealed to the Wisconsin Court of Appeals.

On appeal, the Ringsreds claimed they notified the City in 2006 of their intent to use the cottage as an accessory dwelling, which fulfilled the condition in the original permit. The Ringsreds thus argued that the Commission  had no authority to modify the permit at the September 15, 2009 hearing since there was no permit violation. The Wisconsin Court of Appeals disagreed.

First, the Ringsreds never appealed the Commission’s September 2009 modification. As such, the Ringsreds were not entitled to fresh consideration of all relevant facts and law surrounding the conditions of the 2006 permit or the alleged 2009 violation. The Ringsreds had been provided the opportunity to submit testimony and documents to the Board, but did not. The evidence available was sufficient to support the Board’s decision because “[t]he  Board reasonably inferred the purpose of the original conditional use permit’s third condition was to ensure that occupancy of the cottage would be in compliance with the City’s zoning ordinances.” Further, the Ringsreds were explicitly informed by the City’s attorney of the requirement for a separate conditional permit to use the cottage, and the Ringsreds made no effort to obtain such an additional permit. Not only did the Ringsreds not object to the permit modifications, they promptly complied with the requirement that they provide a written commitment to the Commission that they would not use the cottage as a dwelling without obtaining the required permit. Thus the Ringsreds’ multiple violations of their permit were enough to sustain the Board’s decision that no reasonable further modifications could assure compliance with the ordinance, given the history of their case. So the Wisconsin Court of Appeals affirmed the Board’s decision as well.

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