By LeAnn R. Ralph
MENOMONIE — The Dunn County Zoning Board of Adjustment has denied an appeal by the Barn at Copper Creek in the Town of Sherman to operate a restaurant and tavern under a special exception permit issued for an agricultural zoning district.
The Board of Adjustment denied the appeal and affirmed the decision made by the Dunn County zoning administrator following a public hearing held February 21.
The Barn at Copper Creek, owned and operated by Chase Potter and Mitchell Potter, received a special exception permit from the Board of Adjustment in October of 2018 to operate an agricultural entertainment venue.
The ag entertainment special exception allows private events such as weddings, family reunions and corporate retreats to be held in agricultural buildings located in a General Agricultural zoning district.
The sale of alcohol and the sale of food to the general public is not allowed in agricultural zoning or by special exception for agricultural entertainment in agricultural zoning, said Anne Wodarczyk, Dunn County zoning administrator.
Restaurants and taverns are only allowed in a commercial district, she said.
The specific decision made by the zoning administrator that was under appeal is that the retail sale of alcohol is not allowed by Dunn County’s zoning ordinance in a General Agriculture district nor is it permitted through the existing special exception permit for agricultural entertainment.
The second part of the zoning administrator’s decision that was under appeal is that the preparation, service or sale of food for events open to the public is not allowed under the special exception permit nor is it allowed by Dunn County’s zoning ordinance in the General Agriculture zoning district.
In January of this year, Wodarczyk issued an agri-tourism zoning permit for The Barn at Copper Creek that allows farm-to-table events.
Farm-to-table refers to special events where food is served that was produced on the farm or from other locally-sourced producers and can include seasonally-available food, such as fresh garden produce.
One of the issues with the special exception permit for The Barn at Copper Creek is that while the special exception allows private events with invited guests, such as weddings and family reunions, who may be served food free of charge by a caterer or the hosts of the event, and alcohol, free of charge, by a licensed bartender, the Potters were holding “restaurant nights” for the general public and were charging fees for food and alcohol.
Liquor license
The Town of Sherman has issued a “Class B” liquor license for the Barn at Copper Creek.
A “Class B” liquor license allows the retail sale of liquor by the glass for consumption on or off the licensed premises and also allows a single, open bottle of wine to be taken off the licensed premises, if the bottle of wine is ordered with a meal and is accompanied by a dated receipt and re-corked prior to being taken off the premises.
A “Class B” liquor license is generally referred to as a tavern license, and is different from a Class “B” license, which allows for the retail sale of beer for consumption on and off the licensed premises.
A Class “B” license also is referred to as a “picnic license” and is available to non-profit organizations.
At the February 18, 2021, Sherman Town Board meeting, when the town board was considering the “Class B” liquor license for the Barn at Copper Creek, Chase Potter, who serves as the chair of the Sherman Town Board, excused himself and left the meeting, according to the minutes from the meeting posted online on the Town of Sherman website.
At the February 18, 2021, meeting, the town board also established fees for all liquor licenses in the township, including a fee for an “above quota” liquor license, which is not a reserve license requiring a $10,000 fee by state law, but rather, is a liquor license that can be granted to a full-service restaurant or hotel with permanent seating for 300 people.
The liquor license granted by the Sherman Town Board, being issued as an “above quota” liquor license, defines The Barn at Copper Creek as a full-service restaurant, since state law only allows an above-quota liquor license to be issued to a full-service restaurant with permanent seating for 300.
State law establishes a quota that allows one “Class B” liquor license per 500 of population in a municipality.
Peter Coyle, an attorney representing Chase Potter and Mitchell Potter, said The Barn at Copper Creek was operating as a lawful business because it has an approved commercial kitchen and that the sale of alcohol is accessory to the events being held at the venue.
Mark Dietsche, chair of the Zoning Board of Adjustment, said that in the initial request for a special exception for agricultural entertainment in a General Ag zoning district, Chase Potter had said any alcohol that would be served under the special exception would be free.
Chase Potter noted that they have added improvements and upgrades to the facility, such as running water and nine toilets for 300 people.
Commercial district
If The Barn at Copper Creek was rezoned to commercial, “we wouldn’t even be sitting here,” Dietsche said.
If a use is listed in Dunn County’s zoning ordinance as a permitted use, “you can do it,” said Nick Lange, Dunn County corporation counsel.
Restaurants and taverns are not listed as permitted uses in General Agriculture but they are permitted uses in Limited Commercial and General Commercial, he said.
“Just because” Potter received a liquor license to serve alcohol at The Barn at Copper Creek does not give permission to operate a tavern in a General Agriculture zoning district, which does not allow taverns, Lange said.
“Just because” Potter built a commercial kitchen at The Barn at Copper Creek does not give permission to operate a restaurant in a General Agriculture district, he said.
A tavern cannot be operated in a zoning district where a tavern is not a permitted or primary use, Lange said.
The “Class B” liquor license issued for The Barn at Copper Creek is the same license issued to The Pioneer, Jake’s Supper Club, and any number of establishments in Menomonie and other locations around Dunn County, he noted.
Wodarczyk began her duties as zoning administrator in September of 2021, following the resignation of former zoning administrator Bob Colson.
Colson, who left Dunn County last summer, has said all along that you cannot operate a bar or restaurant in a General Agriculture zoning district, Lange said.
Colson was consistent with the current zoning administrator’s determination, and it is not about whether The Barn at Copper Creek is a valuable commercial enterprise in the community, he said.
The owners of the facility do not have the privilege of saying they can do what they want, and while a bar or restaurant in the Town of Sherman would be “fantastic,” it is not allowed within the special exception permit, it is not allowed with an agri-tourism zoning permit, and the Potters are apparently unwilling to seek a rezone, Lange said, noting that he lives not far from The Barn at Copper Creek.
Coyle said the description of the business as a tavern or restaurant is “a gross misrepresentation” and that events are limited events on a seasonal basis.
The zoning does not allow serving alcohol and does not allow guests to order off a menu, and there is no difference between having a daily schedule and the current operation, if people are being served alcohol and are ordering off a menu, Lange said.
Why not?
Jill Noreen, a member of the Zoning Board of Adjustment, asked why Potter has not applied for a rezone for the property.
“That would solve the problem,” she said.
There is no guarantee a rezone would be granted, and it could be denied, Potter said.
The Town of Sherman does not have a comprehensive land use plan designating that area as a commercial zoning district, so the county would likely deny a rezone, he said.
Potter said he believed he had all of the necessary permits and had permission to operate The Barn at Copper Creek as it was being operated.
Staff at the zoning department have changed their mind, he said, adding that he had received the permit, had spent the time and money to make improvements, and then the county had “changed their mind.”
Potter said he’d had a conversation with Colson in January of 2021, and Colson had said if The Barn at Copper Creek served food one night per week and included agricultural elements, such as access to their farm animals, then it would fall under agri-tourism or ag entertainment.
Several weeks later, Potter said he had asked for Colson to confirm the information in writing.
Wodarczyk, who reminded the Board of Adjustment that the public hearing was about appealing her interpretation of the zoning ordinance and not Colson’s interpretation, pointed out that an e-mail message from Colson was followed up by an official letter stating that a restaurant is a commercial use and is not permitted in a General Agriculture zoning district.
The best chance to continue operating The Barn at Copper Creek is to pursue the permits already in place and not to seek a rezone, Potter said.
In other words, “you have not looked into zoning other than what you assume might happen,” Noreen said.
In favor
The Board of Adjustment received a number of public comments and letters in support of the Potters and The Barn at Copper Creek.
If the Potters had called their events “farm-to-table” instead of “restaurant night,” there would not be a problem, said Juliet Fox, who lives on state Highway 25, and who also said the issue was before the Board of Adjustment because of a complaint by a “competitor.”
The Dunn County Zoning Office has received complaints about the operation at The Barn at Copper Creek but has not disclosed the nature of those complaints.
Fox said she had gone to one such event and had been “thrilled with it.”
Sarah Paquette, who serves on the Town of Sherman Plan Commission, said she was in favor of the appeal.
Farmers need to be resourceful. Copper Creek is an active, working farm, and maybe “restaurant night” was not the best choice of a name, she said.
The Barn at Copper Creek’s farm-to-table events feature local ag produce, produce from the Potter farm, and meat was purchased from a farm near Eau Claire, Paquette said.
The writers of several of the letters received by the Board of Adjustment said they had attended restaurant night, had enjoyed the event and were in support of the business and that it was an asset to the county and to the community.
Not in favor
Other public comments and letters were not in favor of the appeal or the way The Barn at Copper Creek is being operated.
Tony Pember of Wheeler said he had questioned the liquor license at the Sherman Town Board meeting.
Sherman has one reserve liquor license, and that is issued to the Cottage Winery and Vineyard, he said.
The “above quota” liquor license was issued in error. Under state law, an above-quota license can only be issued to a full-service restaurant with a permanent seating capacity of 300 people or more, Pember said.
Another part of state statute defines a restaurant as a building, room or place in which the predominant activity is preparation and service of meals to transients and the general public, he said.
The Barn at Copper Creek does not meet the definition of a restaurant, and their predominant activity is weddings, Pember said.
The Barn at Copper Creek does not qualify for a liquor license under state law or under county ordinances, he said.
John Sippl, who made public comments and also submitted a letter, said he agrees with the current interpretation of what is allowed under the current zoning of General Agriculture, which does not allow the serving of alcohol or a restaurant.
Sippl said he lives 1,500 feet away from the venue and that the noise provision included in the special exception permit is not being followed.
