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Maiman Real Estate, LLC v. Waupaca County

United States District Court, E.D. Wisconsin

October 19, 2017

MAIMAN REAL ESTATE, LLC, Plaintiff,
v.
WAUPACA COUNTY, Defendant. WAUPACA COUNTY Plaintiff,
v.
MAIMAN REAL ESTATE, LLC, Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.

         I. Introduction

         Maiman Real Estate, LLC filed this lawsuit against Waupaca County in Waupaca County Circuit Court regarding a parcel of land Maiman Real Estate purchased to use as off-site parking for the Wheelhouse Restaurant. Because the property was in a different zoning district than the restaurant and more than 500 feet away, Waupaca County cited Maiman Real Estate for violating the Waupaca Zoning Code. Maiman Real Estate alleges that Waupaca County has selectively enforced the zoning ordinance in violation of the Fourteenth Amendment's equal protection clause. Maiman Real Estate also seeks a judgment declaring, among other things, that its use of the subject property constitutes a lawful non-conforming use under the Zoning Code.

         Separately, Waupaca County filed a lawsuit against Maiman Real Estate in Waupaca County Circuit Court seeking an order finding that the subject ordinance is valid and enjoining Maiman Real Estate from using the property as off-site parking for the restaurant. Maiman Real Estate filed counterclaims that mirrored the claims it asserted in the lawsuit it filed, including its claim under the equal protection clause of the Fourteenth Amendment.

         Both lawsuits were removed to federal court and subsequently consolidated. (ECF No. 17.) Waupaca County now seeks partial summary judgment on Maiman Real Estate's equal protection claim. (ECF No. 20.) Additionally, Waupaca County separately seeks summary judgment on its injunction claim. (ECF No. 30.)

         In response to Waupaca County's summary judgment motion on its injunction claim, Maiman Real Estate not only opposes the motion but asks that summary judgment be entered for it pursuant to Federal Rule of Civil Procedure 56(b). (ECF No. 31 at 2.) Rule 56(b) states, “Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of discovery.” Here, the court did set a deadline for filing summary judgment motions: July 16, 2017. (ECF No. 12.) Maiman Real Estate did not file a summary judgment motion by that date. Rule 56(b) does not apply here. Because Maiman Real Estate's request for summary judgment is untimely, it is denied.

         The briefing on Waupaca County's summary judgment motions is complete and the motions are ready for resolution. All parties have consented to the jurisdiction of this court. (ECF No. 3, 8.)

         II. Facts

         Maiman Real Estate, LLC is a Wisconsin limited liability company located in Waupaca, Wisconsin. (ECF No. 23, ¶ 8.) Its sole member is Jeff Maiman. (Id.) Maiman Real Estate owns property located at ¶ 1209 County Road Q in Waupaca which it leases to Wheelhouse Restaurant, Inc. (ECF No. 23, ¶ 13), of which Maiman is the sole shareholder. (ECF No. 26, ¶ 32.) Wheelhouse Restaurant, Inc., operates the Wheelhouse Restaurant on the leased property. (ECF No. 26, ¶ 33.) The Wheelhouse Restaurant is located on property zoned “Rural Commercial-Neighborhood.” (ECF No. 23, ¶ 15.)

         Waupaca County is a self-organized county in Wisconsin established pursuant to the Wisconsin Constitution and Chapter 59 of the Wisconsin Statutes. (ECF No. 23, ¶ 9.) Ryan Brown has been employed as Director of Waupaca County Department of Planning and Zoning since September 2012. (ECF No. 26, ¶ 28.) His responsibilities include coordinating and assisting with land use activities at the county level, including applying and administering the county's zoning codes and ordinances. (Id.)

         In 2013 the Wheelhouse Restaurant began leasing a vacant residential parcel of land located approximately 1, 500 feet west of the restaurant. (ECF No. 33, ¶ 33.) The property was owned by Cal Lehman (the “Lehman Property”) and was used by the restaurant as off-site parking for employees of the restaurant. (Id.) Although it is not clear from the parties' submissions, it appears that the Lehman Property was zoned “Sewered Residential.” (See ECF No. 26, ¶ 4, referring to the Lehman Property as a vacant residential parcel of land; and ECF No. 31 at 21, stating that the Lehman Property was zoned for sewered residential use.)

         In December 2014 Maiman learned that property located at ¶ 1120 Pleasant Park Lane in the city of Waupaca (the “Pleasant Park Property”) was listed for sale. (ECF No. 26, ¶ 5.) The Pleasant Park Property and the Lehman Property are adjacent to each other, separated by County Road Q. (ECF No. 26, ¶ 7.) The Pleasant Park Property was approximately four acres and was improved with a single family residence and detached garage. (Id.) The Pleasant Park Property was zoned “Sewered Residential.” (ECF No. 23, ¶ 12.)

         Maiman engaged the services of a real estate broker, Ben Lyons, to contact the Waupaca County Planning and Zoning Department to determine whether a portion of the Pleasant Park Property could be used as off-site parking for employees of the Wheelhouse Restaurant. (ECF No. 26, ¶ 6.) At the time, Section 5.0 of the Waupaca County Zoning Code established various use classifications for properties subject to the Zoning Code. (ECF No. 26, ¶ 3.) No use classification identified “off-street parking” or “off-street parking facilities” as either a permitted or conditional use in the Zoning Code. (Id.) Section 6.01 of the Zoning Code provided:

Section 5.0 broadly categorizes potential land uses in Waupaca County as Permitted (P), or Conditional Use (C) within the Zoning Districts. Definitions and additional requirements for these land uses are included in Sections 6.05 through 6.10. The Planning & Zoning Director or Planning and Zoning Committee will be required in some instances to provide interpretation of these definitions in order to determine if a proposed use is allowed in the applicable district. Land uses that are not specifically listed are not necessarily excluded from locating within a given Zoning District.

         Waupaca County Zoning Ordinance Chap. 34, Sec. 6.01.

         Lyons met with Brown and other employees of the Waupaca County Planning Staff. (ECF No. 26, ¶ 7.) Brown advised that the use of Pleasant Park Property as off-site parking was not specifically prohibited by the Zoning Code. (ECF No. 26, ¶ 8.)

         In December 2014 Maiman and a business associate met with Brown to discuss the proposed use of the Pleasant Park Property. (ECF No. 26, ¶ 9.) During the meeting Maiman described the improvements that would be necessary to create an off-site parking area. (ECF No. 26, ¶ 10.) Maiman told Brown that Maiman Real Estate would not purchase the Pleasant Park Property unless a portion of the property could be used by the Wheelhouse Restaurant for off-site parking. (Id.) Maiman says that Brown told him at that meeting that the proposed use of the Pleasant Park Property would be allowed under the terms of the Waupaca County Zoning Code. (ECF No. 26, ¶ 11.) Brown says that he told Maiman only that the use of the property for off-site parking was not specifically prohibited by the Zoning Code. (Id.)

         In reliance on Brown's statements, on January 4, 2015 Maiman Real Estate submitted an offer to purchase the Pleasant Park Property for $282, 680. (ECF No. 26, ¶ 12.) On April 2, 2015, Maiman Real Estate purchased the property. (ECF No. 26, ¶ 13.) Immediately thereafter Maiman Real Estate entered into contracts to improve the property, paying contractors over $26, 000 for improvements. (ECF No. 26, ¶ 14.)

         By early summer 2015 the Wheelhouse Restaurant began using the Pleasant Park Property for off-site ...


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