COURT OF APPEALS

DECISION

DATED AND FILED

December 12, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1991 Cir. Ct. No. 2021CV129

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

SOJENHOMER LLC AND 7783 STH 42 LLC,

 PLAINTIFFS-RESPONDENTS,

 V.

VILLAGE OF EGG HARBOR AND VILLAGE OF EGG HARBOR PLAN 

COMMISSION,

 DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Door County: 

D. T. EHLERS, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ.

¶1 STARK, P.J. In this zoning case, Sojenhomer LLC and 7783 STH 

42 LLC (hereinafter, Sojenhomer) challenge the Village of Egg Harbor Plan 
No. 2022AP1991

2

Commission’s1 denial of a conditional use permit (CUP). The Plan Commission 

denied the CUP on the basis that the CUP application’s proposal would exacerbate 

existing traffic safety and congestion problems and therefore did not promote the 

public safety and welfare of the Village’s residents.

¶2 On certiorari review, the circuit court concluded that the Plan 

Commission did not proceed according to law when it denied Sojenhomer’s CUP 

application. Specifically, the court found that Sojenhomer’s right to a fair and

impartial review of its CUP application had been violated by the involvement of 

two members of the Plan Commission who had demonstrated prior bias. It further 

determined that the due process violation could not be cured on remand. The 

court therefore reversed the Village’s decision and directed that the CUP be 

granted unconditionally. The Village appeals from the court’s reversal.

¶3 On appeal, the Village does not contest that the bias of two of the 

Plan Commission members affected its decision or that Sojenhomer’s procedural 

due process rights were violated. Instead, the Village argues that the circuit court 

erroneously exercised its discretion by ordering that the CUP be granted 

unconditionally as a remedy, rather than choosing from a variety of alternative

remand options. Because we conclude that the court reasonably exercised its 

discretion under the facts in this case by remedying the violation of Sojenhomer’s 

due process rights through the unconditional grant of the CUP, we affirm.

 

1

 The Village of Egg Harbor delegated the authority to review conditional use permits to 

the Village of Egg Harbor Plan Commission (Plan Commission). We refer to both parties as the 

Village, unless otherwise noted.
No. 2022AP1991

3

BACKGROUND

¶4 Sojenhomer’s property is currently home to Shipwrecked Brew Pub, 

a restaurant and brew pub, located at the intersection of State Trunk Highway 42 

and County Trunk Highway G in Egg Harbor, Wisconsin. In its CUP application, 

Sojenhomer proposed to expand Shipwrecked by constructing an addition for an 

outdoor beer garden on a previously purchased, adjacent lot. Under the Village’s 

ordinances, the proposal required a zoning CUP.2 See DOOR COUNTY, WIS.,

VILLAGE OF EGG HARBOR CODE OF ORDINANCES § 152.025(B)(4) (Apr. 13, 

2013).

¶5 In January 2021, Sojenhomer applied for an initial CUP for the 

project. The Village denied Sojenhomer’s initial CUP after a public hearing. The 

Village’s written decision cited issues with a proposal for Shipwreck’s shared use 

of a driveway to allow for “egress from [the] additional parking spots and [the] 

beer garden,” which would require the project to be “reconfigured” and would 

impact “access, setbacks, parking configuration and impervious surface concerns.” 

This CUP application is not at issue in this case.

¶6 According to the Village, Shipwrecked’s “expansion was 

overwhelmingly opposed by Village residents,” and the Village received 

numerous letters as well as signature petitions objecting to the CUP. The Village 

states that “[t]he common complaint was that no new parking was being provided 

 

2

 “Conditional uses are for those particular uses that a community recognizes as desirable 

or necessary but which the community will sanction only in a controlled manner.” Town of 

Rhine v. Bizzell, 2008 WI 76, ¶20, 311 Wis. 2d 1, 751 N.W.2d 780.
No. 2022AP1991

4

for an establishment that was already woefully short of spaces in a highly 

congested and parking[-]challenged area.”

¶7 Sojenhomer claims that as a result of the initial CUP application, a 

GoFundMe page—titled, “Smart Growth Egg Harbor”—was created as a “fund to 

contribute to attorney fees for Egg Harbor residents and business owners looking 

to keep our village ordinances upheld.” The GoFundMe page contained a photo of 

the Village’s sign changing the name “Egg Harbor” to “KEG Harbor.” There is 

no dispute that Plan Commission members Jon Kolb and Chris Roedl3individually 

donated to the GoFundMe page.

¶8 On March 23, 2021, Sojenhomer filed a second CUP application—a 

revised version of its initial application—which is the subject of this case. 

Sojenhomer sought permission to construct an addition to the current Shipwrecked 

building, composed of both kitchen preparation space and storage as well as an 

“outdoor facing bar that will operate seasonally.” The project would add 

ninety-two additional seats in a landscaped area, but “due to geographic 

constraints,” Sojenhomer averred that there was not enough space on the proposed 

project site for a large, paved parking lot.

¶9 For “Restaurant-Type Activities,” the Village’s ordinances required 

“[o]ne (1) space per four (4) seats + one (1) space per four (4) employees,” which 

includes seating “both inside and outside.” CODE OF ORDINANCES

 

3

 Roedl was not a member of the Plan Commission during Sojenhomer’s initial CUP 

application review.
No. 2022AP1991

5

§ 152.030(D)(1) (Sept. 13, 2021).

4

 The application proposed expanding the

Shipwrecked premises to increase the seating capacity to 394 patrons and 

accommodate up to 24 staff members; thus, the Village’s ordinances required 

Shipwrecked to have 104.5 parking spaces. Based on the record and the Plan 

Commission’s numerous discussions, it is unclear exactly how many onsite 

parking spaces Shipwrecked had available or would have available after 

construction, but it is clear that the construction would not provide 104.5 onsite 

parking spaces.

5

 Accordingly, Sojenhomer proposed three methods—all of which 

are permitted under the Village’s ordinances—to make up for Sojenhomer’s 

failure to meet the parking requirements, including adding seven onsite parking 

spaces, executing a shared use agreement with other nonadjacent properties owned 

by Sojenhomer to use these properties’ parking spaces, and paying a yearly fee in 

lieu of providing the remaining parking spaces. See CODE OF ORDINANCES

§ 152.030(D)(2)(a)-(c).

¶10 Sojenhomer’s second CUP application was considered by the 

Village at two public hearings—on May 11 and August 23, 2021—and at six Plan 

Commission meetings—on May 25, July 27, August 23 and 24, September 28, and 

October 13. At the May 11 public hearing, both Plan Commission members Kolb 

and Roedl recused themselves after Sojenhomer’s attorney addressed the 

 

4

 All references to CODE OF ORDINANCES § 152.030 in this decision are to the 

September 13, 2021 amendment. We note that during the pendency of these proceedings, this 

section was amended, but it does not appear that the previous version of this section was included 

in the appellate record. Further, while the amendments to this section do appear to relate to this 

CUP application, the amendments do not impact our decision on appeal.

5

 The Village admits that the “conceptual conversations [about parking] make the record 

confusing.”
No. 2022AP1991

6

GoFundMe donations. After recusing himself, Kolb testified at the hearing as a 

member of the public.

¶11 During the Plan Commission meetings, the discussion centered 

around the parking issue. Sojenhomer was asked to find a way to include more 

onsite parking and provide a revised plan, and a number of proposed alternatives 

were discussed at the subsequent meetings. As a result, on July 22, 2021, 

Sojenhomer filed a Special Development District (SDD) application, requesting 

relief from the Village’s setback requirements to construct a parking lot.

6

 

Sojenhomer stated, however, that the SDD application did not amend the second 

CUP application, and it was not a resubmittal of that application.

¶12 The August 23, 2021 public hearing addressed both the second CUP 

and SDD applications. On August 24 and September 28, the Plan Commission 

again met to discuss the applications, and Kolb participated in the discussion. 

There is also evidence in the record that despite recusing himself from public 

consideration of the application, Roedl was in contact via email with Plan 

Commission members during this period, discussing the CUP and his concerns.

¶13 During the September 28, 2021 meeting, the Plan Commission 

discussed including a condition limiting the number of additional seats in 

Shipwrecked, pursuant to CODE OF ORDINANCES § 152.030(D)(2)(d), which 

Sojenhomer opposed, stating that “[c]utting the number of seats in half makes the 

 

6

 According to the Village, Sojenhomer also “subsequently submitted shared parking 

‘suggestions’ that included the Cape Cod Motel (owned by Sojenhomer and used for employees) 

and Fat Louis’s, a shop selling olive oil, which is also owned by Sojenhomer. Both [suggestions]

needed the approval of separate SDD relief from setback requirements to accommodate additional 

parking.”
No. 2022AP1991

7

project no longer financially viable.” The Plan Commission took a vote on that 

issue, and Kolb’s vote caused a tie, so the matter was tabled for another meeting. 

Finally, on October 13, the Plan Commission denied the second CUP application 

by a vote of 4-2. Kolb participated in the vote and voted to deny the project, and 

Roedl abstained from voting.

¶14 The Plan Commission later issued its written findings of fact and 

conclusions of law. It concluded that the CUP was contrary to the Village’s 

comprehensive plan because “[p]ermitting the expanse of the restaurant at this 

location can only serve to exacerbate existing traffic safety and congestion 

problems in this area and therefore does not promote the public safety and welfare 

of the Village,” the proposed number of onsite parking spaces “is insufficient to 

serve the expanse contemplated in the [a]pplication,” and the alternative parking 

“fulfillment method[s] provided in the application [are] not acceptable” for various 

reasons. The Plan Commission denied both the CUP and the SDD.

¶15 On November 24, 2021, Sojenhomer filed this action with the circuit 

court, asserting a claim for certiorari review of the Village’s denial of the CUP. 

After reviewing the entire record in the matter, the court issued its written 

decision, concluding that the Plan Commission did not proceed according to law

and reversing the denial of Sojenhomer’s CUP application. According to the 

court, “there were two Plan Commission members”—Kolb and Roedl—“who 

initially recused themselves due to a high risk of bias”; “however, these Plan 

Commission members ended up materially involved in the hearings and, as a 

result, violated Sojenhomer’s right to a fair and impartial hearing.” The court 

continued,

 It is undisputed that Sojenhomer’s project complied with 

all the Village of Egg Harbor’s ordinances.... In spite of 

that fact, a review of the entire record in this matter makes 
No. 2022AP1991

8

it clear that Sojenhomer’s right to an unbiased and fair 

tribunal of its application was violated. The involvement 

and actions of Mr. Kolb and Mr. Roedl had ... poisoned the 

well. Once that occurred, it’s hard to fathom how that 

damage could be undone and that defect cured on remand.

I conclude it cannot.

It therefore ordered “that a conditional use permit consistent with Sojenhomer’s 

May 23, 2021[] application be issued by the Village of Egg Harbor.”

¶16 Thereafter, the Village responded with a motion for reconsideration 

of the circuit court’s decision. In its motion, the Village argued that the court 

failed to consider “all available remedies in exercising its discretion” and that 

public policy required reconsideration. After briefing, the court denied the 

Village’s motion. The court observed that the Village did not deny that the court 

had the authority to reverse its CUP decision, but the court determined that 

regardless of any other alleged remand options, “due process and fundamental 

fairness” violations are “extremely serious” and “drastic consequences may 

result.” According to the court, its decision was based on its finding that “the well 

was so poisoned against [Sojenhomer] and [the] application, no amount of curative 

efforts can remove that blight.” The Village appeals.

DISCUSSION

¶17 On appeal, the Village clarifies that it “does not dispute” that

Sojenhomer “did not get a fair hearing on its [CUP] application” and that it “does 

not appeal the [circuit] court[’]s decision to reverse the [Village’s] denial of the 

[CUP].” The Village does, however, appeal the court’s “order to unconditionally 

grant the conditional use permit instead of other available remedies for a remand.” 

Thus, the scope of our review in this case is different from a traditional appeal of a 

CUP denial.
No. 2022AP1991

9

¶18 Typically, our scope of certiorari review is limited to:

(1) whether the municipality kept within its jurisdiction; 

(2) whether it proceeded on a correct theory of law; 

(3) whether its action was arbitrary, oppressive, or 

unreasonable and represented its will and not its judgment; 

and (4) whether the evidence was such that it might 

reasonably make the order or determination in question.

Ottman v. Town of Primrose, 2011 WI 18, ¶35, 332 Wis. 2d 3, 796 N.W.2d 411. 

Here, however, the Village does not challenge the circuit court’s conclusion that 

the Plan Commission did not proceed on a correct theory of law. See Marris v. 

City of Cedarburg, 176 Wis. 2d 14, 24, 498 N.W.2d 842 (1993) (“The phrase 

‘acted according to law’ has been interpreted as including ‘the common-law 

concepts of due process and fair play.’”);

7

see also Miller v. Zoning Bd. of 

Appeals of Lyndon Station, 2023 WI 46, ¶¶9, 13, 19, 407 Wis. 2d 678, 991 

N.W.2d 380 (stating that adjudicative decisions involve “apply[ing] existing law 

 

7

 In Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993), our supreme 

court explained:

[W]e recognize that zoning decisions implicate important private 

and public interests; they significantly affect individual property 

ownership rights as well as community interests in the use and 

enjoyment of land. Furthermore, zoning decisions are especially 

vulnerable to problems of bias and conflicts of interest because 

of the localized nature of the decisions, the fact that members of 

zoning boards are drawn from the immediate geographical area, 

and the adjudicative, legislative and political nature of the zoning 

process. Since biases may distort judgment, impartial 

decision-makers are needed to ensure both sound fact-finding 

and rational decision-making as well as to ensure public 

confidence in the decision-making process.

Id. at 25-26 (footnotes omitted). According to the court, “where established criteria direct the 

Board’s fact-finding and decision-making, [the property owner] should expect that a decision will 

be made on the basis of the facts and the law. If a Board member prejudges the facts or the 

application of the law, then [the property owner’s] right to an impartial decision-maker is 

violated.” Id. at 26.
No. 2022AP1991

10

to individual facts ... like whether to grant a variance or permit a legal 

non-conforming use” and “when adjudicative acts are involved, procedural due 

process requires impartial decision-makers”).8

¶19 Based on the circuit court’s conclusion that the Plan Commission did 

not proceed on a correct theory of law, it then had “three options—affirm, reverse, 

or remand for further proceedings consistent with the court’s decision.” Hartland 

Sportsmen’s Club, Inc. v. City of Delafield, 2020 WI App 44, ¶12, 393 Wis. 2d

496, 947 N.W.2d 214; WIS. STAT. § 68.13(1) (2021-22).

9

 The Village does not 

challenge the court’s ability to order reversal; instead, it appears that the Village 

challenges only the court’s choice between reversal or remand, arguing that the 

 

8

 We note that after the circuit court’s decision in this case, Sojenhomer applied for the 

expansion of its liquor license to accommodate the new construction, but the Village denied the 

liquor license expansion. Sojenhomer LLC v. Village of Egg Harbor Bd. of Trs.

(Sojenhomer II), No. 23-C-44, 2023 U.S. Dist. LEXIS 186920, at *4-5 (E.D. Wis. Oct. 18, 

2023). Sojenhomer then filed an action against the Village in federal court, alleging causes of 

action under 42 U.S.C. §§ 1983 and 1985 for violations of its equal protection rights, substantive 

due process rights, and procedural due process rights and seeking compensatory and punitive 

damages for the denial of the CUP and the expansion of the liquor license. Id. at *1-2. 

Sojenhomer alleged that the Village denied the liquor license application due to its denial of the 

CUP, despite the fact that the circuit court had ordered the CUP be granted unconditionally. Id.

at *5. After briefing before this court was complete, the federal district court issued its decision, 

granting the Village’s motion for judgment on the pleadings and dismissing Sojenhomer’s case. 

Id. at *21.

We conclude that the federal district court’s decision has no bearing on our decision in 

this case. First, we are not bound by federal decisions on issues of state law. See West Bend 

Mut. Ins. Co v. Berger, 192 Wis. 2d 743, 755, 531 N.W.2d 636 (Ct. App. 1995). Second, the 

federal case addressed different issues and is therefore distinguishable. In the federal case, the 

Village challenged Sojenhomer’s procedural due process claim, while in this case, the Village 

acknowledges its due process violation and challenges only the circuit court’s remedy. Finally, 

we disagree with the district court’s assertion that a CUP is more in the nature of a legislative 

decision than an adjudicative decision. Sojenhomer II, No. 23-C-44, at *16-17. The Plan 

Commission’s decision here was adjudicative, not legislative, as it involved applying the existing 

Village ordinances to the individual facts of the CUP application.

9

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP1991

11

court’s “decision ordering the grant of a [CUP] instead of remanding the matter 

back to the Plan Commission to cure the bias issue was an abuse of discretion.”10 

(Formatting altered.) “A circuit court’s discretionary decision is reviewed under 

an erroneous exercise of discretion standard.” Ness v. Digital Dial Commc’ns, 

Inc., 227 Wis. 2d 592, 599-600, 596 N.W.2d 365 (1999). “A reviewing court will 

uphold a discretionary decision if the circuit court considered the relevant facts, 

properly interpreted and applied the law, and reached a reasonable determination.” 

Id. at 600.

¶20 Recently, in Hartland Sportsmen’s Club, we clearly outlined the 

standard by which we are to review whether remand is appropriate on certiorari

review. There, we stated:

 Remand to the municipality or administrative tribunal 

for further hearings is appropriate where (1) the defect in 

the proceedings is one that can be cured, but 

(2) supplementation of the record by the government 

decision maker with new evidence or to assert new grounds 

is not permitted. Consequently, (3) “[o]utright reversal is 

appropriate when the due process violation cannot be cured 

on remand,” which includes cases in which the evidence 

failed to support the government’s decision.

Hartland Sportsmen’s Club, 393 Wis. 2d 496, ¶14 (alteration in original; citations 

omitted).

¶21 As mentioned, the circuit court determined that by the actions of 

Kolb and Roedl, Sojenhomer’s right to a fair and impartial hearing had been 

 

10

 Wisconsin courts changed the terminology used in reviewing a circuit court’s 

discretionary act from “abuse of discretion” to “erroneous exercise of discretion” in 1992. 

See City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 

484 (1992). While the two phrases refer to the same standard of review, id., we urge counsel to 

use the correct terminology going forward.
No. 2022AP1991

12

violated, and the Village does not challenge that determination. Based on the 

court’s review of the evidence in the record, it further concluded that Kolb and 

Roedl’s involvement “poisoned the well” and “that damage could [not] be undone 

and that defect [could not be] cured on remand.” Thus, the third principle in 

Hartland Sportsmen’s Club is applicable: “Outright reversal is appropriate when 

the due process violation cannot be cured on remand.” Id., ¶20 (quoting Guerrero 

v. City of Kenosha Hous. Auth., 2011 WI App 138, ¶12 n.5, 337 Wis. 2d 484, 805 

N.W.2d 127). Reversal was clearly a remedy that was available to the court.

¶22 The Village does not question the remedies available under 

Hartland Sportsmen’s Club.

11

 It argues, instead, that the circuit court erred by

not ordering other options. For example, the Village asserts that the court could 

have: (1) “remanded the matter back to the Plan Commission and ordered a new 

hearing without Mr. Kolb and Mr. Roedl either as a five member instead of seven 

member Plan Commission or a seven member Commission with substitutes for 

Mr. Kolb and Mr. Roedl”; (2) “ordered the creation of an entirely new set of 

commissioners to rehear the matter”; (3) “remanded the matter to the Village 

Board of Appeals” pursuant to WIS. STAT. § 62.23(7)(e)7.b.; or (4) “appointed a 

referee or ‘master.’” According to the Village, “[t]here would be no need to 

rehear the application. The new decision makers could rely on the existing 

record.”

 

11

 The Village does argue that Hartland Sportsmen’s Club, Inc. v. City of Delafield, 

2020 WI App 44, 393 Wis. 2d 496, 947 N.W.2d 214, is not a bar to remand. We agree, but we 

also recognize that our decision in that case provides a legal basis for our conclusion here that the 

circuit court did not erroneously exercise its discretion.
No. 2022AP1991

13

¶23 We conclude that the circuit court did not erroneously exercise its 

discretion by determining that the alternatives the Village suggests are not viable 

options under the circumstances. First, WIS. STAT. § 68.13(1) permits a remand 

“to the decision maker.” Based on the plain language of the statute, see State ex 

rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 

N.W.2d 110, “the decision maker” in this case is the Plan Commission. Thus, 

§ 68.13(1) does not provide a legal basis to remand to another entity, the Village 

Board of Appeals, or a referee or master. Second, “a certiorari court cannot order 

a municipality on remand to perform a certain act.” Hartland Sportsmen’s Club, 

393 Wis. 2d 496, ¶23 (citing Guerrero, 337 Wis. 2d 484, ¶9). The Village cites 

no authority for the court to substitute others for duly elected or appointed 

members of the Plan Commission. At best, the court could have ordered a remand 

to some of the Plan Commission—absent Kolb and Roedl—but the court 

considered this option and reasonably concluded that the entire Plan Commission 

was tainted.

¶24 In reply, the Village makes the conclusory statement that “any of the 

so-called taint from the bias of ... Kolb and Roedl is curable by removing and 

replacing them on remand.” (Formatting altered.) The Village fails, however, to 

develop that argument beyond stating that Sojenhomer’s initial CUP application 

was denied, which was before Kolb contributed to the GoFundMe page and before 

Roedl was on the Plan Commission, and that Sojenhomer does not challenge the 

findings and conclusions the Plan Commission made on the CUP denial at issue

here.

¶25 Neither of those assertions explain how “removing” Kolb and Roedl 

would specifically cure the due process violation. The Village cites no authority 

or evidence that the due process violation at issue in this case could be cured on 
No. 2022AP1991

14

remand. Absent evidence to the contrary, we accept the circuit court’s finding that 

“the well”—meaning the Plan Commission—“was so poisoned against 

[Sojenhomer] and [the] application, no amount of curative efforts can remove that 

blight.” Further, to the Village’s point that the CUP application would not need to 

be reheard and the new decision makers could rely on the existing record, this 

solution would only exacerbate the court’s concerns if the Plan Commission were 

to merely rely upon the existing record, where both Roedl and Kolb participated in 

multiple hearings. Thus, the court did not erroneously exercise its discretion by 

reversing the Plan Commission’s decision and granting the CUP.

¶26 On appeal, the Village advances several additional arguments for 

why we should overturn the circuit court’s decision, which we do not find 

persuasive. First, the Village claims that the court erroneously exercised its 

discretion because it based its reversal and grant of Sojenhomer’s CUP on a 

mistake of fact: that Sojenhomer met all zoning requirements. According to the 

Village, “[t]he fact remains that Shipwrecked is now woefully short of required 

on-site parking and proposes a major expansion without any significant increase in 

on-site parking,” and the “court ignored the Commission’s findings and 

conclusions.”

¶27 It is true, as noted above, that the circuit court stated that “[i]t is 

undisputed that Sojenhomer’s project complied with all the Village of Egg 

Harbor’s ordinances.” In support of this proposition, the court cited the Plan 

Commission’s chairperson, who opined that “[w]e may agree [Sojenhomer has] 

checked all the boxes.” According to the record, a different Plan Commission 

member also stated:

 I contend they have met the ordinances. What leg do 

we have to stand on legally to not allow them to do this 

addition? In terms of a [CUP], I don’t think we have a leg 
No. 2022AP1991

15

to stand on. This will turn into a court battle that we are 

going to lose. Two years from now the project is going to 

happen. This will cost the Village tens of thousands of 

dollars.

Finally, a third member argued,

I think an important part of this is to review the ... memo 

of the State of Wisconsin statu[t]es .... It demands that we 

have reasons to deny this application. I don’t see what 

Shipwrecked has not complied with.... Unless someone 

comes up with a firm factual reason to deny [the CUP], I 

don’t think we can deny it. They have done everything we 

have asked.

¶28 The crux of the circuit court’s decision was that there was a clear 

violation of the right to an unbiased and fair tribunal and that the violation could 

not be cured on remand. As noted, the Village does not challenge the court’s 

finding of bias, and it also does not meaningfully argue that the violation can be 

cured on remand. The issue is not whether Sojenhomer met all reasonable and 

measurable ordinance requirements. The court reasonably considered whether the 

CUP met those requirements in weighing the options available to remedy the 

violation of Sojenhomer’s rights. The court’s real issue of concern was that 

Sojenhomer never had the opportunity to prove to an unbiased trier of fact whether 

it could meet the ordinance requirements.

¶29 Based on the above evidence in the record, the circuit court could 

reasonably have found that most or all of the Village’s ordinance requirements 

were met but that some on the Plan Commission nevertheless did not approve how 

Sojenhomer proposed to resolve the parking issues. However, because the Plan 

Commission reached that decision based upon the influence of biased Commission 

members, the court concluded that Sojenhomer’s due process rights were violated. 

In other words, the Plan Commission was absolutely authorized to decide against 

Sojenhomer’s CUP for the reasons it stated; however, the Commission had to 
No. 2022AP1991

16

reach that decision without undue influence, and the court reasonably found that it 

did not.

¶30 Second, the Village claims that the circuit court erred because it 

erroneously believed that the Village’s review under its zoning ordinances “is 

limited to a ‘box checking’ exercise.” According to the Village, a checklist is not 

possible because each CUP application is unique and employing one “would 

eliminate the flexibility of a conditional use.”12 The Village states that “[t]he 

Findings and Conclusions of the Village of Egg Harbor Plan Commission 

regarding lack of parking, congestion, negative effect on adjoining properties and 

other considerations including public health, safety or general welfare [are] well 

within the Plan Commission’s discretion.”

13

¶31 We disagree that the circuit court’s reference to the chairperson’s 

statement about “check[ing] all the boxes” was a determination that the Plan 

Commission’s decision was to be based upon inflexible considerations. Instead, 

the court decided that the Plan Commission failed to act fairly and impartially in 

exercising its discretion and adjudicating the merits of Sojenhomer’s otherwise 

 

12

 We note that the Village’s brief-in-chief, in support of this proposition, attributes a 

five-line quotation to our supreme court’s decision in Edward Kraemer & Sons, Inc. v. Sauk

County Board of Adjustment, 183 Wis. 2d 1, 14, 515 N.W.2d 256 (1994). However, the 

language quoted by the Village does not appear on the cited page of Kraemer, nor does it appear 

anywhere else in that decision. Instead, the Village’s misattributed quote appears to have come 

from the Village’s own brief in a previous case before this court in 2011. While Kraemer

certainly provides support for the Village’s assertion that a conditional use procedure must be 

flexible, and while the Village is free to reuse arguments from its own previous briefs, we caution 

against misattributing language to our supreme court, or any court. 

13

 Within the Village’s argument, it claims that because Sojenhomer applied for SDD 

relief from the setback requirements, “[t]his fact alone demonstrates that [Sojenhomer] itself 

knew that it did not and could not check all the boxes.” The circuit court did not address the SDD 

relief because it was not submitted with the original CUP application and was not the subject of 

the certiorari review of the CUP denial.
No. 2022AP1991

17

sufficient CUP application. Therefore, it concluded that the Plan Commission did 

not proceed according to law. The Village does not contest that finding. 

¶32 Third, the Village argues that the circuit court’s decision was 

“unreasonable because the so-called ‘well’ was poisoned by” Shipwrecked’s 

general manager, Joe Smith, “before it was poisoned by ... Kolb and Roedl.” 

(Formatting altered.) During the review of Sojenhomer’s initial CUP application, 

Smith was a Village Board Trustee, was chair of the Plan Commission, and 

presented the initial CUP application to the Plan Commission. The Village 

explains that participants noted Smith’s “conflict of interest,” and it states—

without citing any direct evidence in the record—that “Smith was aggressive, 

argumentative and condescending at the public hearing on May 13.” The Village 

cites case law from several other jurisdictions, stating that an official in these 

circumstances should not have been permitted to participate in the proceedings at 

all. In summary, according to the Village, the court’s failure to note Smith’s 

actions, and the fact that he also tainted the proceedings, means the court’s order 

“should not stand.”

¶33 We agree with Sojenhomer that the Village’s argument on this point 

is a red herring. First, Sojenhomer’s initial CUP application is not before this 

court. Second, it is undisputed that Smith was not a Plan Commission member 

when the CUP application at issue here was considered. Finally, and overall, the 

Village fails to articulate any reason why a former member’s participation in the 

discussion about a prior CUP application taints subsequent Plan Commission 

proceedings, in which the former member did not participate, that resulted in a 

denial of a subsequent CUP. The Village also cites no legal authority for its claim 

that any of Smith’s prior actions require the circuit court to ignore the current due 

process violation and uphold the denial of the CUP.
No. 2022AP1991

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¶34 Finally, the Village argues that the fact that the circuit court 

acknowledged “the drastic nature of this decision,” when it need not have been so 

drastic, means that the court’s decision was unreasonable and, therefore, an 

erroneous exercise of discretion. The Village asserts that the “court’s drastic 

decision severed any consideration of the dramatic and direct impact on 

neighboring business properties or the common good and general welfare of the 

community.” According to the Village, the “court could have remanded the matter 

back to the Plan Commission and ordered a new hearing without Mr. Kolb and 

Mr. Roedl .... This is by far the most common and appropriate remedy.”

¶35 We conclude that 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 record supports the court’s conclusion that some, if not 

all, of the remaining Plan Commission members were influenced by Kolb’s 

involvement and Roedl’s behind-the-scenes arguments after each had ostensibly 

recused themselves. In reply, the Village suggests that “[e]valuating 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.” 

But if the Plan Commission’s decision was crystal clear, then it would not have 

needed to deliberate the CUP over multiple meetings. Further, this argument 

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 possibility that the Plan 

Commission was tainted is not inconceivable. Accordingly, the court reasonably 

found that although there were other options available, there was no way to afford 

Sojenhomer a fair and impartial hearing on remand.
No. 2022AP1991

19

By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.