Brewer v. Town of Eagle

663 F.Supp.3d 909

Erica BREWER and Zachary Mallory, Plaintiffs, v. TOWN OF EAGLE and Town of Eagle Town Board, Defendants.

Case No. 20-CV-1820-JPS

United States District Court, E.D. Wisconsin

Signed March 21, 2023

Kirby Thomas West, Marie Miller, Alexa Gervasi, Brian Morris, Marie L. Miller, Samuel B. Gedge, William R. Aronin, Institute for Justice, Arlington, VA, Stephen P. Hurley, Hurley Burish SC, Madison, WI, for Plaintiffs.

Dustin T. Woehl, Matthew J. Hastings, Thomas A. Cabush, Kasdorf Lewis & Swietlik SC, Milwaukee, WI, for Defendants.

ORDER

J. P. Stadtmueller, United States District Judge

1. INTRODUCTION

This civil rights case came before the Court by way of removal in December of 2020. ECF No. 1. Plaintiffs Erica Brewer ("Erica") and Zachary Mallory ("Zachary") (jointly, "Plaintiffs") allege violations of their First Amendment rights stemming from criticism lodged against Defendants Town of Eagle and Town of Eagle Town Board ("Defendants"). Id. Now before the Court is Defendants' motion for summary judgment. ECF No. 65. For the reasons discussed herein, the Court will deny the motion.

2. FACTUAL BACKGROUND¹

2.1 Introduction to Plaintiffs and the Property

Plaintiffs, a married couple, own a property located in the Town of Eagle ("Eagle"). Eagle is a municipality in Waukesha County, Wisconsin.

Plaintiffs purchased the 3.8-acre property in 2016 with the intention of starting a family business thereon. The property is recognized by the Farmer Veteran Coalition as a "Veteran Farm." On the property, Plaintiffs maintain a residence, barn, chicken coop, and beehives, and they engage in various agricultural activities. They cultivate and sell produce, raise poultry and gather eggs, and extract honey and beeswax from their hives. They sell many of these products at local farmers markets, as well as from their property.

2.2 The Rezoning

When Plaintiffs purchased the property, it was zoned as "Agricultural 3." In 2017, the year after Plaintiffs purchased it, Eagle rezoned the property to "Rural Residential." This rezoning limited Plaintiffs' ability to engage in agricultural activities on the property. Notwithstanding the rezoning, Eagle has allowed Plaintiffs to continue limited agricultural uses of the property.

2.3 Structures, Improvements, and Permits

The house, barn, 12x12 shed, and water and electrical lines present on the property have existed thereon since roughly 1997. When Plaintiffs purchased the property, their real estate agent assured them that the house, barn, and original utility lines were properly permitted. There exists a copy of the permit for the house, but apparently the parties located no permits for the other aforementioned structures. Eagle represents that it does not have permits for the barn or the utilities and that both were erected without the required permits.

Sometime following their purchase of the property, but before May of 2020, Plaintiffs obtained a permit to construct an outdoor pool. They erected that outdoor pool and subsequently added an outdoor hot tub with a submersible heating element. For this latter improvement, they did not obtain a permit, as they believed that no permit was necessary.

In July of 2017, Zachary asked Eagle's Building Inspector, Martin Montoya ("Montoya") whether he would require a permit to rebuild a shed. Montoya told him no permit would be needed if the shed were 150 square feet or less, but that nevertheless such construction would require compliance with applicable zoning codes and restrictions regarding building height and location. Montoya informed Zachary that Eagle's ordinances did not allow more than three accessory structures and that Plaintiffs would need to obtain a variance if they wanted to erect additional structures on their property. Montoya told Zachary that a chicken coop counted as an accessary structure.

Plaintiffs constructed a greenhouse on their property without obtaining a permit. They additionally built a temporary soft-sided storage shed on their property without obtaining a permit. They then constructed a chicken coop attached to the barn. Plaintiffs did not obtain a permit for that construction, either. At some point, Plaintiffs also began building something on the outside of the second floor of their house without obtaining a permit. The purpose of this addition was to provide shade and stability for plants. Plaintiffs also erected a farm stand on their property from which they sell produce. They did not obtain a permit for construction of this stand, nor one for selling products from the property.

2.4 Plaintiffs' Speech on Matters of Public Concern²

Plaintiffs engaged in vocal questioning at town meetings and on social media³ of the Town of Eagle Town Board's ("Board") actions. Plaintiffs made open-records requests for documents and regularly attempted to communicate with the Board, its members, and the Town Clerk regarding whether the Board was complying with the law and with proper procedures. Plaintiffs were persistent but respectful in such questioning. Erica spoke regularly at town meetings. She questioned the Town Chairman, Don Malek ("Malek"), regarding his handling of proceedings. She was openly critical of his ability to run meetings. She additionally accused another Board member and a Board Supervisor, Stephen Muth ("Muth") of driving by her house and taking pictures from his car.

At a Board meeting on August 3, 2020, Erica suggested that a Board Supervisor and County Supervisor, Christine Mommaerts ("Mommaerts") had received produce as a bribe to influence her vote on the beekeeping ordinance. This upset Mommaerts, who left the meeting in tears.⁴

On social media, Erica posted a comment encouraging residents of Eagle to file complaints directly with the county, rather than through Mommaerts. County representatives, following receipt of such complaints, instructed Mommaerts to notify her constituents that receiving such complaints is what she was there for.

Additionally, Erica took issue with the Board disallowing public comment on a potential beekeeping ordinance. The Board stated that it disallowed public comment because the topic was being adjourned to be discussed at a later meeting. The topic was being adjourned, the Board asserted, because Tim Wilbanks ("Wilbanks"), a speaker who had been arranged to present to the Board, could not be present at the original meeting.⁵

On July 22, 2020, Erica emailed Board members because, as she interpreted it, the Board had refused to take public comment at the meeting related to the potential beekeeping ordinance. In that email, Erica criticized Malek for shutting down comments and argued against the ordinance, which would set a hive limit. Erica also criticized the Board's selection of Wilbanks as an advisor on beekeeping.

On July 27, 2020, Mommaerts emailed the Town Clerk, Lynn Pepper ("Pepper"), relaying that Wilbanks had asked if the Board could just "go with" someone else in light of the contentious state of the bee issue. Mommaerts asked the Town Clerk to put something " 'politically' correct" on the website regarding why Wilbanks would not be coming. She also wrote about how she wanted to touch base with Wilbanks to see if they could "draft" something updated to "throw a bone" at the dissatisfied dissenters. Mommaerts additionally relayed how she had told another Board Supervisor, Janis Suhm ("Suhm"), about how "Mallory [was] making a mess of things." "Mallory" to referred to Erica.

Erica additionally spoke negatively and publicly on social media about Pepper, specifically regarding her salary and minute-taking.

2.5 Eagle's Code Enforcement Practices and Policies

Eagle created its Board in accordance with Wisconsin Statutes Section 60.10. The Board is authorized to determine whether to investigate, pursue, and enforce ordinance violations against residents of Eagle. "Ordinance" broadly includes Eagle's zoning code, municipal code, building code, and other civil ordinances enforced through Board proceedings.

Eagle has two written policies for ordinance enforcement. One is for zoning code enforcement, and one is for building code enforcement. These two policies are very similar, except that the zoning code enforcement policy contains the following statement, which the building code enforcement policy does not: "The complainant must be either personally affected by the violation or the violation must directly affect his or her property value." Despite this difference, Eagle treats the written Zoning Code Enforcement Procedure as applicable to both building code enforcement and to maintenance code enforcement.

Eagle's policy allows it to investigate alleged ordinance violations through onsite inspections only in response to written complaints submitted by residents who have been "personally affected" by the alleged ordinance violations or whose property value is "directly affect[ed]" thereby. Complaints can be submitted anonymously only if the complainant speaks with a Board member and has that member sign the complaint on the complainant's behalf.

According to the understanding of Pepper, the Town Clerk, code enforcement begins only by way of a complaint submitted to a Board member. It was Pepper's understanding that complaints went to Malek for his signature, and that Malek then turned the complaint over to either the Building Inspector or the Zoning Administrator.

The Town Chairman (at all times relevant to this lawsuit, Malek) is the only person who determines whether a complainant is, indeed, personally affected, or whether their property value is affected, by the alleged ordinance violation. There is no check in place to ensure that the Town Chairman evaluates a complaint based on those criteria. The Town Chairman could, hypothetically, choose not to evaluate whether a complainant meets those criteria. Historically, if a complainant's property was located next-door to the property complained about, the Town Chairman would presume the criteria to be met without...