### 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2022AP1991 Cir. Ct. No. 2021CV129 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

S OJENHOMER LLC AND 7783 STH 42 LLC,

P LAINTIFFS - R ESPONDENTS ,

V . V ILLAGE OF E GG H ARBOR AND V ILLAGE OF E GG H ARBOR P LAN C OMMISSION ,
D EFENDANTS - A PPELLANTS .

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 PlanNo. 2022AP1991

2 Commission’s 1 denial of a conditional use permi t (CUP). The Plan Commission
denied the CUP on the b asis that the CUP application’s proposal would exacerbate existing traffic safety and congestion problems and therefore did not promote the public s afety and welfare of the V illage ’s residents.

¶ 2 On certiorari review, the circuit court concluded tha t the P lan 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 involveme nt of
two members of the Plan Co mmission 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 C UP be granted uncondit ionally. 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 argue s 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 cour t 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 Trun k Highway G in Egg Harbor, Wisconsin

. In its CUP application, Sojenhomer proposed to expand Shipwrecked by constructing an addition f or an outdoor beer garden on a previously purchased, adjacent lot

. Under the Village’s ordinances, the proposal required a zoning CUP. 2 See D OOR C OUNTY , W IS ., V ILLAGE OF E GG H ARBOR C ODE OF O RDINANCES § 152.025 (B)(4) ( Apr

. 13, 2013).

¶ 5 I n January 2021 , Sojenhomer applied for an initial CUP for the project

. T he Village denied Sojenhomer’s initial CUP after a public hearing

. The Village’s written decision cited issues with a pr oposal 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 th is 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 object ing 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 ap plication, 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 o ur village ordinances upheld.” The GoFundMe page contained a photo of
the Vill age ’s sign changing the name “Egg Harbor ” to “KEG Harbor.” There is no dispute that Plan Commission members Jon Kolb and Chris Roedl 3 individually
donated to the GoFundMe page

. ¶ 8 On March 23, 2021, Sojenhomer filed a second CUP applicati on

— a revised version of its initial application

— whic h is the subject of this case. Sojenhomer sought permission to construct an addition to the current Shipwrecked building, composed of both kitchen prep aration 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, pav ed parking lot.

¶ 9 For “ Restaurant

- Type Activities ,” the Village’s o rdinance s required “[o]ne (1) space per four (4) seats + one (1) space per four (4) employees,” which includes seating “both inside and outside.” C ODE OF O RDINANCE S

3 Roedl was not a member of the Plan Commission during Sojenhome r ’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 o rdinance s 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 p ermitted under the Village ’s o rdinance s

— to make up for Sojenhomer ’s
failure to meet the parking requirements, including adding seven onsite parking
spaces, exec uting 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 C ODE OF O RDINANCES § 152.030(D)(2)(a)

- (c).

¶ 10 Sojen homer’s second CUP application was considered by the Village at two public hear ings

— on May 11 and August 23 , 2021

— and at six Plan Commission meetings

— on May 25, July 2 7 , 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 C ODE OF O RDINANCES § 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 th e 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 no t impact our decision on appeal.

5 The Village admits that the “concep tual conversations [about parking] make the record confusing.”No. 2022AP1991

6 GoFundMe donations. After recusing himself, Kolb testified at the hear ing 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 Developm ent 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 th at application.

¶ 12 The Aug ust 23 , 2021 public hearing addressed both the second CUP
and SDD application s. On August 24 and September 28 , the Plan Commission again met to discu ss th e applications, and Kolb participate d in the discussion

. T here 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 includ ing a condition limiting the number of additional seats in Shipwrecked , pursuant to C ODE OF O RDINANCES § 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 w as tabled for another meeting.
Fina lly, on October 13 , the Plan Commission denied the second C UP 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 exacerb ate existing traffic safety and congestion problems in this area and therefore does not promote the public sa fety and welfare of the Village , ” the proposed number of onsite parking spaces “ is insufficient to serve the expanse contemplated in t he [a] pplicat ion, ” 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 Novembe r 24, 2021, Sojenhomer filed this action wit h the circuit court, asserting a claim for certiorari review of the Village’s denial of the CUP

. A fter 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 C UP application

. According to the court, “ there w ere two Plan Commission members”

— Kolb and Roedl

— “ who initially recused themsel ves due to a high risk of bias”; “however, these Plan Commission members ended up mate rially involved in the hearings and, as a result, violated Sojenhomer’s right t o 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 th at fact, a review of the entire record in this matter makesNo. 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 occurr ed, 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 c onsistent with Sojenhomer’s May 23, 2021[] application be issued by the Village of Egg Harb or.”

¶ 16 Thereafter, t he 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 po licy required reconsideration. After briefing, the cour t denied the Village’s motion. Th e 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 fundamen tal
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 [Sojen homer] 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] a pplication ” 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, o ur 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 orde r 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 Vi llage 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 Lyndo n Station , 2023 WI 46, ¶¶ 9, 13, 19, 407 Wis. 2d 678, 991 N.W.2d 380 (stating that adjudicative decision s involve “ apply[ing] e xisting 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 decisi ons 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 bi as 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 biase s 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 (footnote s omitted). According to the court, “w here 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 ac ts are involved, procedural due
proc ess 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 procee dings 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 ; W IS

. S TAT

. § 68.13(1) (2021

- 22)

. 9 T he 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 denie d 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 proce ss 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 C UP 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 decisio n 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 di fferent 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 na ture 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 e xercise 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
standar d 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 he arings is appropriate wher e (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 asser t new grounds is not permitted. Consequently, (3) “ [o]utright reversal is appropriate when th e due process viola tion 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 im partial hearing had been

10 W isconsin courts changed the terminology us ed 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 re fer 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

. B ased on the
court’s review of the ev idence in the record, it further conclude d that Kolb and Roedl’s involvement “poisoned the well” and “ that damage could [not] be undone
and that defect [c ould not be] cured on remand.” T hus, the third principle in Hartland Sportsmen’s Club is applicable : “ Outright reversal is appropriate when the due process violation c annot 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 ). R eversal was clearly a remedy that was available to the court

. ¶ 22 The Village does not question t he remedies available under Hartland Sportsmen’s Club

. 11 It argues, instead, that the circuit court erred by
not order ing other options

. For example, t he Village a sserts 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 substit utes f or Mr. Kolb and Mr. Roedl ” ; (2) “ordered the creation of an entirely new set of

com missioners to rehear the matter ” ; (3) “r emanded the matter to the Village Board of Appeals” pursuant to W IS

. S TAT

. § 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 ap plication. The new decision makers could rely on the existing record.”

11 T he 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 de termining that the alternatives the Village suggests are not viable opt ions under the circumstances. First, W IS

. S TAT

. § 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 Co mmission. 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). T he Vil lage cites no authority for the court to substitute others for d uly elect ed or appointed
members of the Plan C ommission. At best, the court could have ordered a remand
to some of the Plan Commission

— absent Kolb and Roedl

— but t he 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, t o 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 conclus ions the Plan Commission made on the CUP denial at issue
here.

¶ 25 Neither of those assertions explain how “ removing ” Kolb and Roedl
would specifically c ure the due process violation. T he Village cites no authority or evidence that the due process violation at issue in this case could be cured onNo. 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 ef forts 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 e xacerbate 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. Firs t, 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

- s ite parking and proposes a major expansion without any significant increase in

on

- site parking,” and the “court ignored the C ommissio n’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.” Ac cording 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 t hink we have a legNo. 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 importan t part of this is to review the

... memo of the State of Wisconsin statu [t] es

.... It demands that we have re asons 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 thi nk 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 vio lation can be
cured on remand. Th e 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, t he circuit court could reasonably have found that most or all of the Village’s o rdinance requirements

were met but that some on the Plan Commission nevertheless did not approve how Sojenhomer proposed to r esolve the parking issues. However, because the Plan
C ommission reached that decision based upon the influence of biased C ommission members, the court concl uded 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 C ommission had toNo. 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 Co nclusions 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 fail ed 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 C ou nty B oar

d of Adj ustment , 183 Wis. 2d 1, 14, 515 N.W.2d 256 (1994). However, the language quoted by the Village does not appear on the c ited 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 f or 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 Vill age’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 c ould 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. T he Village does not c ontest 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 particip ate in the proceedings at
all. In summary, a ccording to the Village, the court ’s failure to note Smi th’s
actions , and the fact that he also tainted the proceedings , means the cou rt’s order “should not stand.”

¶ 33 We agree with Sojenhomer that t he Village’s argument on this point is a red herring

. First, Sojenhomer ’s initial CUP applicati on is not before this court. Second, i t is undisputed that Smith was not a Plan Commission member when the CUP ap plication at issue here was considered. Finally, and overall, t he Village fails to articulate any reason why a former member ’s participation in the
discussion about a prior CUP application taints subsequent Plan Commission
procee dings , in which the former member did not participate , that result ed 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 c ourt to ig nore the current due process violation and uphold the denial of the CUP.No. 2022AP1991

18 ¶ 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. R oedl .... This is by far the most c ommon and appropriate remedy.”

¶ 35 We conclude that t he Village’s argument on this point is nothing more than a disagreement with the circuit court’s decision , and it disre gards our standard of review. The record supports the co u rt’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 sugge sts 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 pro cess 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, t he court reasonably found that although there were other options available, there was no way to a fford Sojenhomer a fair and impartial hearing on remand.No. 2022AP1991

19 By the Court.

— Judgment affirmed.
Not recommended for publication in the official reports.