Posted by: Patricia Salkin | March 6, 2017

Fed. Dist. Court of WI Finds Imposition of Zoning Citations for Junkyard Did Not Amount to a Constitutional Violation and Their Claims Were Precluded

In 2015, the Oconto County Zoning Department conducted an on-site inspection of Robert and Wendy Kolkowski’s property to determine whether the property was in violation of the Oconto County Zoning Ordinance. Kevin Brehmer, the Oconto County Assistant Zoning Administrator, determined that the property was in violation of several sections of the ordinance. After Plaintiffs failed to bring their property into compliance, the Department issued one citation for operating a junk yard without permits and another citation for having three or more semi-trailers on the property. The Kolkowski’s claimed they needed the equipment to “take care of the life God gifted to them and that they cannot come into compliance with the Oconto County Zoning Ordinances without conflicting with their duty to God.” The circuit court found Kolkowski guilty of both citations, assessed a fine on each citation, and ordered compliance within 30 days and payment within 60 days. Additional citations for noncompliance were issued to both Robert and Wendy Kolkowski after 60 days, and Robert Kolkowski served 8 days in jail for failing to bring his property into compliance.

In this appeal, Defendants argued that summary judgment was appropriate under the doctrine of claim preclusion because Plaintiffs had the opportunity to litigate all of their claims in the Oconto County Circuit Court and failed to do so. The court noted that Plaintiffs’ prior litigation in the Oconto County Circuit Court resulted in a judgment on the merits in a court with jurisdiction, in which the court found that Brehmer and Mick properly acted in a discretionary manner in issuing and prosecuting the noncompliance citations, respectively. Furthermore, Plaintiffs’ attempt to attack the validity of not only the circuit court’s judgment in imposing the forfeitures, but also the validity of the Oconto County Zoning Ordinance as applied to their property, was already decided in the lawsuit filed in Oconto County Circuit Court. Additionally, the actions which Plaintiffs’ complaint was based in this case arose from the same transaction: the Kolkowski property’s nonconformance with the ordinance and the decision by the Oconto County Zoning Department to issue citations.  Accordingly, the court held that the causes of action between Plaintiffs’ case in this court and the prior cases filed in the Oconto County Circuit Court were identical, and Plaintiffs’ claims were therefore precluded.

Kolkowski v  Oconto County Zoning Department, 2017 WL 530514 (ED WI 2/9/2017)


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