DC Zoning Board of Adjustment affirms original special exception for The Barn at Copper Creek
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By LeAnn R. Ralph
MENOMONIE — The Dunn County Zoning Board of Adjustment has affirmed the original special exception permit for agricultural entertainment granted in 2018 for The Barn at Copper Creek in the Town of Sherman.
The motion at the Board of Adjustment’s June 20 meeting to affirm the special exception permit also states that the special exception does not deny the ability to sell food and alcohol during agricultural entertainment events.
The conditions for the original special exception permit do not explicitly grant permission for the sale of food and alcoholic beverages at agricultural entertainment events.
The Board of Adjustment did not address the above-quota “Class B” liquor license issued by the Town of Sherman that would apply to a full-service restaurant.
According to state law, an above-quota “Class B” liquor license can only be issued to a full-service restaurant with permanent seating for 300 or more, or for a hotel or a theater.
Dunn County’s zoning code does not allow a full-service restaurant to operate in an agricultural district, and The Barn at Copper Creek property is zoned agricultural.
Under Dunn County zoning, restaurants and taverns can only be operated in a limited commercial district.
According to the Dunn County Comprehensive Zoning Ordinance Sec. 13.4.0.04(f)2, no special exception permit shall violate the spirit or general intent of the zoning ordinance.
The Town of Sherman is among the townships in Dunn County that have adopted county zoning.
The Board of Adjustment motion also includes denial of the current request for a new special exception permit, which was the reason for the June 20 public hearing before the Board of Adjustment.
The background information included in the Board of Adjustment packet notes that the new application for a special exception was nearly identical to the application for the special exception that was granted in 2018.
The Barn at Copper Creek is owned and operated by Chase and Mitchell Potter.
Chase Potter serves as chair of the Sherman Town Board.
Agricultural entertainment is defined as using agricultural based buildings, equipment or land for an event, performance or activity intended to entertain others such as festivals, dances, weddings, corporate gatherings, reunions, concerts, haunted houses and motorized amusement rides.
The June 20 Board of Adjustment meeting lasted over four hours, with more than an hour of public comments.
Liquor license
The Town of Sherman approved the application for a “Class B” above-quota liquor license at the February 18, 2021, meeting for The Barn at Copper Creek.
State law uses quotation marks to make distinctions among the liquor licenses available. A “Class B” license is different from a Class “B,” although both refer to consuming alcohol on the premises. “Class A” and
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Class “A” liquor licenses refer to sales of alcohol by places such as liquor stores and grocery stores where the consumption is off premises.
According to the minutes from the February 18, 2021, Sherman Town Board meeting, “Amanda moved to agenda item consideration of Above Quota “Class B” liquor license application for the Barn at Copper Creek. Mitchell Potter shared information about their wedding and event venue that has the capacity and table and chairs for 300 people. Mitchell stated they intend to start offering midweek restaurant nights at their venue and want to be able to offer a full range of drinks. Noting the Wisconsin Town’s Association recommendation that the applicant needs to meet the physical requirements and full service requirements of a restaurant with an interior, permanent seating for 300 people in order to be issued an above the quota license under Wis. Stat. 125.51(4)(v)1, and that an above quota license could be granted with conditions, but not issued until the license requirements are met, Mitchell stated they wanted know they would be granted a “Class B” license prior to the costly investments of putting in a commercial kitchen.”
It should be noted that Chase Potter excused himself from the meeting during the discussion of the liquor license and left the building.
According to Wisconsin statute 125.51(4)(v), an above-quota liquor license can be issued for a full-service restaurant with an interior, permanent seating capacity of 300 or more; for a hotel that has 50 or more rooms of sleeping accommodations and has an attached restaurant with a seating capacity of 150 or more or a banquet room in which banquets attended by 400 or more may be held; an opera house or theater for the performing arts operated by a non-profit organization and allows the consumption of alcohol on premises and only in connection with ticketed performances; or a full-service restaurant in Bayfield County that had a seating capacity of 75 to 100 people on November 26, 2009.
Restaurant Night
Questions about operating a restaurant and tavern were raised when the owners of The Barn at Copper Creek began holding events called “Restaurant Night” with a full-service bar.
In August of 2021, the Dunn County zoning department received a complaint that alleged Potter was operating a full-service restaurant on his property open to the public and that he was engaging in the retail sale of alcohol as would take place at a bar or a tavern.
The Barn at Copper Creek could operate Restaurant Night as a farm-to-table event under an agri-tourism zoning permit, in the opinion of Anne Wodarczyk, Dunn County zoning administrator.
According to e-mail correspondence from Wodarczyk to Potter on January 14, 2022, the zoning office had received a zoning permit application for agri-tourism so that The Barn at Copper Creek could host farm-to-table events.
Under Chapter 13 definitions for Dunn County’s zoning ordinance, agri-tourism is defined as “Agricultural enterprises, businesses, horticultural, or agricultural operations such as a farm, orchard, winery, greenhouse, agri-store or livestock show, which combine the elements and characteristics of agriculture, agricultural related products, agricultural related activities and uses and tourism for the purpose of providing recreation, entertainment, education, or active involvement in the agricultural operation, other than as a contractor or employee of the operation. Agri-tourism does not include ‘agricultural entertainment’.”
A zoning permit for agri-tourism would be required in addition to a special exception permit, according to background information included in the packet for the Board of Adjustment.
In the January 14 correspondence, Wodarczyk wrote that under Wisconsin statute 94.01(14g), a restaurant is defined as “any building, room or place at which the predominant activity is the preparation, service or sale of meals to transients or the general public, including all places used in connection with it.”
Wodarczyk noted that a restaurant is not an allowed principal or accessory use in the general agriculture district and that it was her interpretation 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 ordinance.
The serving of food for private agricultural entertainment events as described in the existing special exception is permitted, she wrote.
Private events would include events such as weddings, bridal showers, birthday parties and reunions.
Pertaining to serving alcoholic beverages, Wodarczyk wrote, “As I understand, you currently hold a Class B liquor license. Taverns and bars are not an allowed principal or accessory use in the General Agriculture district. Your application for the Special Exception permit stated you would only serve alcohol free of charge. Staff recommendations, Town recommendations, and subsequent decisions by the Board of Adjustment are based on the proposal specified in the application as well as the testimony given during the hearing. Therefore, the incidental and accessory sale of alcohol is not allowed by ordinance nor is it permitted through your existing special exception permit for Agriculture Entertainment.”
Amendment
In November of 2021, Wodarczyk told Potter he would have to apply for an amendment to the special exception permit to serve and charge for alcohol during private weddings and related events and to prepare food served at those events.
Wodarczyk also said she did not believe Potter would be able to operate events advertised as “Restaurant Nights” during which he was operating his barn as a restaurant open to the public with an attached bar.
Potter requested that the Board of Adjustment overturn Wodarczyk’s decision.
The Board of Adjustment (BOA) upheld Wodarczyk’s decision during a hearing held February 21, 2022.
Potter subsequently requested Dunn County Circuit Court review and reverse the BOA decision confirming the zoning department’s position concerning the special exception permit.
At a motion hearing May 9, the court denied a request to temporarily enjoin enforcement of the BOA decision.
Since restaurants or taverns cannot be operated in an agricultural zoning district, Wodarczyk has suggested that Potter could apply for a rezone to commercial, which “would allow for the widest range of possibilities and uses,” according to correspondence from Wodarczyk to Chase and Mitchell Potter dated November 24, 2021.
There is no guarantee Dunn County would grant a rezone to commercial since The Barn at Copper Creek is zoned as general agriculture.
Changing the zoning to commercial in an area zoned for agriculture and not identified in a land use plan as a site for future commercial development would be viewed as “spot zoning.”
Public comments
More than 20 people made public comments or submitted written comments to the Board of Adjustment.
Many of those who spoke were in favor of The Barn at Copper Creek and supported the Potters’ business activities, noting that the events were family-friendly and brought revenue into Dunn County.
Several of those who supported The Barn at Copper Creek were in favor because their own businesses benefited, such as a florist and a hair stylist.
Others who spoke during public comments expressed concern about noise, traffic on the town roads, the agricultural zoning in the Town of Sherman, and concern about The Barn at Copper Creek not following regulations.
Of particular concern for several people making public comments was an event called “Girls Night Out” scheduled on June 19 with adult entertainment male dancers and ticket packages that included “lap dances.”
Later on in the Board of Adjustment meeting, Chase Potter told the board that the June 19 event had been cancelled.
Adult entertainment male dancers would be allowed under Dunn County zoning in a limited commercial district but not under a special exception for agricultural entertainment.
Wodarczyk expressed concern about a list of more than 100 activities Potter had included for possible events that could be held at The Barn at Copper Creek.
Later on in the meeting, Potter said he had made up the list of events to show how ridiculous it would be to try to list all of the events that could possibly be held at The Barn at Copper Creek.
Dairy breakfast
One person during public comments said that Potter was suing over the Dunn County Dairy Breakfast.
Later on in the meeting, Potter said he had no idea where the information had come from that he was suing over the dairy breakfast.
Potter has filed a civil lawsuit against the Board of Adjustment, and the online court record for Dunn County Circuit Court at a May 9 hearing indicates the court reviewed a conflict of interest with the dairy breakfast.
Mark Dietsche, chair of the Board of Adjustment, along with his wife, son and daughter-in-law, hosted this year’s Dunn County Dairy Breakfast on June 11 at their farm in the Town of Grant.
Dairy breakfasts are put on by the Dunn County Dairy Promotion Committee as a way to promote dairy farming.
The dairy breakfasts typically attract 1,500 to 3,000 guests, but the owner of the farm does not collect the proceeds from the breakfast, and in fact, the farm owners spend time and money to make sure their farms are ready for guests and also lose crop production in fields used for parking.
Each year, a different dairy farm hosts the dairy breakfast.
Farmers are asked if they would be willing to host the dairy breakfast two years in advance.
Board of Adjustment
The role of the Board of Adjustment is to try to make special exception permits that are not intrusive to the community, Dietsche said.
The issue comes with the different zoning designations, he said.
Bars and restaurants are allowed in commercial districts, but bars and restaurants are not a permitted use in an agricultural district, Dietsche said.
A special exception does not change the zoning designation, he noted.
At the heart of the contention is the sale of food and alcohol to the public in the way a restaurant or cash bar operates, Dietsche said.
The Restaurant Nights did not raise a red flag with the former zoning administrator, Bob Colson, until a representative for the Bureau of Alcohol, Tobacco and Firearms said that the alcohol license was issued to The Barn at Copper Creek because the business qualified as a restaurant, he said.
Obtaining a special exception permit does not change the zoning, Dietsche reiterated.
The Town of Sherman has jurisdiction over the issuance of a liquor license, and Dunn County has jurisdiction to issue a license for a commercial kitchen, he said.
The issue for zoning is land use. Under general agricultural zoning, a venue could not use a liquor license, Dietsche said.
During Potter’s testimony at the public hearing for the special exception permit granted in 2018, he said alcohol would be served free of charge and food would be catered at weddings, Dietsche said.
The zoning administrator is not “picking on” The Barn at Copper Creek, but rather, is relying on testimony and the original permit that was issued, he said.
It should be noted that the Board of Adjustment is considered a quasi-judicial board and that before people give testimony to the Board of Adjustment, they are sworn in, much in the same way people are sworn in for a court of law.
Many wedding barn venues leave the serving of food and alcohol up to the person or couple who is renting the venue.
Weddings are considered private events that people attend by invitation, and regulations pertaining to food and alcohol do not apply if the people renting the venue are supplying their own food and drinks because the wedding is much the same as having a graduation party at your house or a backyard barbecue.
Decision
The Dunn County Zoning Board of Adjustment unanimously approved a motion to deny the June 20, 2022, request for a new special exception and to affirm the original 2018 special exception for agricultural entertainment and that the special exception does not deny the ability to sell food or alcohol for agricultural entertainment events.
The Zoning Board of Adjustment did not discuss the above-quota liquor license issued for a full-service restaurant located in an agricultural district.
The Dunn County Planning, Resources and Development Committee and the zoning department should be more specific in the ordinance pertaining to agricultural entertainment, Dietsche said.
Being more specific would be helpful for the Board of Adjustment and would probably help the general public feel more comfortable, he said.
Conditions
Here are the conditions for the special exception granted for The Barn at Copper Creek in 2018:
• Applicant may hold events from May to October from 10 a.m. to 11 p.m.
• No camping or overnight guests.
• Maximum of 300 guests at any event.
• Amplified music may only be played in the barn.
• All facility lighting should be shielded or pointed downward.
• Applicant shall provide at least one toilet per 75 guests.
• Applicant shall provide an event plan to the Town of Sherman and to Dunn County on an annual basis.
• Music cannot exceed 70 decibels 300 feet from the barn and may not be played after 11 p.m.
• No parking on town roads. The applicant must submit a parking plan that includes fencing along the roads, signage, and 40-foot gravel driveways that meet the town’s residential driveway ordinance. The plan shall be approved by the Town of Sherman and Dunn County.
