Petition for Writ of Certiorari — Eagle Cove Camp & Conference Center, Inc., et al., Petitioners v. Town of Woodboro, Wisconsin, et al.

No.

JN THE SUPREME COURT

of the

GNITED STATES

EAGLE COVE CAMP & CONFERENCE CENTER, INC., a Wisconsin nonstock corporation, ARTHUR G. JAROS, JR., as Co-Trustee of the Arthur G.

Jaros, Sr, and Dawn L. Jaros Charitable Trust, and as Trustee of the Arthur

G. Jaros, Sr. Declaration of Trust and as Trustee of the Dawn L. Jaros

Declaration of Trust, WESLEY A. JAROS, as Co-Trustee of the Arthur G.

Jaros, Sr. and Dawn L. Jaros Charitable Trust, and RANDALL S. JAROS, as

Co-Trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust

Plaintilts/Appellants/Cross-Respondents/

Petitioners,

v.

COUNTY OF ONEIDA, Detendant/Respondent,

TOWN OF WOODBORO, Defendant/Cross-Appellant/Respondent,

ONEIDA COUNTY BOARD

OF ADJUSTMENT, Detendant.

SEPARATE APPENDIX

VOLUME 8 OF 3 —- APPENDICES HH - QQ

of

PETITION FOR WRIT OF CERTIORARI

Arthur G. Jaros, Jr., Counsel of Record

The Law Office of Arthur G. Jaros, Jr.

1200 Harger Road, #830

Oak Brook, IL 60523

(630) 574-0525

agilaw@earthlink.net

TABLE OF CONTENTS TO APPENDIX

Volume 1 of 3

Rule 14(1)(i))@ Items:

APPENDIX A Wisconsin Supreme Court Order Denying Review 06/16/2020 App. 1

APPENDIX B Wisconsin Court of Appeals Decision 11/20/2019 App. 3

APPENDIX C Oneida County Circuit Court Decision 01/23/2015 App. 42

Rule 14(1)(i) (id Items:

APPENDIX D Oneida County Planning & Zoning Committee

Meeting Minutes 06/14/2006 App. 56

APPENDIX E Wisconsin Department of Natural Resources

Grading Permit 11/16/2007 App. 66

APPENDIXF Oneida County Planning & Zoning Committee

Excerpts ftom Transcript of Meeting 07/29/2009 App. 71

APPENDIX G — Oneida County Planning & Zoning Committee

: - Meeting Decision Denying Conditional Use Permit 08/19/2009 App. 75

APPENDIX H — Oneida County Board of Adjustment Ruling

Affirming Denial of Conditional Use Permit 02/11/2010 App. 81

APPENDIX I U.S. District Court Opinion and Order 02/01/2013 App. 87

APPENDIXJ — USS, District Court Judgment 02/05/2013 App. 112

APPENDIX K Seventh Circuit U.S. Court of Appeals Opinion 10/30/2013. App. 113

APPENDIXL — U.S. District Court Opinion and Order 08/11/2016 = App. 124

APPENDIX M _ Seventh Circuit U.S. Court of Appeals Order 01/25/2017 = App. 130

Rule 14(1)()(ii) Items:

APPENDIX N _ . Seventh Circuit U.S. Court of Appeals Order

Denying Panel and En Banc Rehearing 12/10/2013 App. 131

APPENDIX O — Oneida County Circuit Court Transcript Re: Oral

Ruling Denying Reconsideration 04/22/2015 App. 132

APPENDIX P

APPENDIX Q

Oneida County Circuit Court Transcript Re: Oral

Ruling Denying Renewed Motion for

Reconsideration 02/21/2018

Wisconsin Court of Appeals Order Denying

Reconsideration 12/12/2019

Rule 14(1)(i)(iv) Item:

APPENDIX R Oneida Circuit Court Judgment 04/04/2018

Volume 2 of 3

Rule 14(1)()(v) Items:

APPENDIX S Excerpts from Oneida County Circuit Court Record

Re: Raising of Federal F.R.Civ.P 54(b) Issue 02/13/2015

05/14/2015

APPENDIX T Excerpts from Wisconsin Court of Appeals Record

Re: Raising of Federal F.R.Civ.P 54(b) Issue:

Combined Brief 11/20/2018

Motion for Reconsideration 12/09/2019

APPENDIX U Excerpts from Wisconsin Supreme Court Record

Re: Raising of Federal F.R.Civ.P 54(b) Issue: 01/13/2020

APPENDIX V Excerpts from Oneida County Circuit Court Record

Re: Raising of Equal Protection Issue in Context of

Disparate Application of F.R.Civ.P. 54(b) 02/16/2018

APPENDIX W Excerpts from Wisconsin Court of Appeals Record

Re: Raising of Equal Protection Issue in Context of

Disparate Application of F.R.Civ.P. 54(b)

(Opening) Brief of Plaintiffs-Appellants 07/23/2018

Combined Brief 11/20/2018

APPENDIX X Excerpts from Wisconsin Supreme Court Record

Re: Raising of Equal Protection Issue in Context of

Disparate Application of F.R.Civ.P. 54(b) 01/13/2020

APPENDIX Y Excerpts from Wisconsin Court of Appeals Record

Re: Denied of Procedural Due Procedure in Imposition

of Sanctions

Motion for Reconsideration 12/09/2019

App. 159

App. 193

App. 194

App. 198

App. 201

App. 204

App. 209

App. 213

App. 217

App. 222

App. 226

App. 231

App. 209

APPENDIX Z Excerpts from Wisconsin Supreme Court Record

Re: Denied of Procedural Due Procedure in

Imposition of Sanctions

APPENDIX AA Excerpts from Wisconsin Court of Appeals Record

Re: Denied of Procedural Due Procedure in Refusal

to Address Arguments Made in Appeal as of Right

and in Unlawfully Denying Appellants’ Their

Statutory Right to Oral Argument

Motion for Reconsideration

Arguments Made in (Opening) Brief

APPENDIX BB Excerpts from Wisconsin Supreme Court Record

Re: Denied of Procedural Due Procedure in

Wisconsin Court of Appeals’ Refusal to Address

Arguments Made in Appeal as of Right and in its

Unlawfully Denying Appellants’ Statutory Right

to Oral Argument

Rule 14(1)()(vi) Items:

APPENDIX CC U.S. District Court Amended Complaint

APPENDIX DD Plaintiffs’ U.S. District Court Notice of

Additional Authority

APPENDIX EE Excerpts from Seventh Circuit Appellants’

Briefs in #13-1274

APPENDIX FF Excerpts from Seventh Circuit Appellants’

Brief in #16-3194

APPENDIX GG Oneida County Circuit Court Amended Complaint

Volume 3 of 3

APPENDIX HH Appellants’ (Opening) WI Court of Appeals Brief

APPENDIX TH = Woodboro’s Opening WI Court of Appeals Cross-

Appellant’s Brief

01/13/2020

12/09/2019

07/23/2018

01/13/2020

04/27/2010

07/09/2011

05/09/2013

06/25/2013

09/26/2016

08/29/2014

07/23/2018

09/14/2018

APPENDIX JJ. Combined Brief in WI Court of Appeals of Appellants/

Cross-Respondents

11/20/2018

App. 241

App. 253

App. 257

App. 267

App. 276

App. 330

App. 332

App. 338

App. 344

App. 347

App. 419

App. 482

App. 525

APPENDIX KK Woodboro’s Circuit Court Motion for Sanctions —_‘ 10/31/2014

APPENDIX LL Oneida County Circuit Court (post-remand)

Judgment Awarding Attorney’s Fees and Costs to

the Town of Woodboro 09/21/2020

APPENDIX MM Color Photograph: Apartment Building Overlooking

Squash Lake

APPENDIX NN Constitutional, Statutory and Ordinance Provisions Involved:

United States Constitutional Provisions

Civil Rights Act — 42 U.S.C. §1983

Religious Land Use and Institutionalized Persons Act — 42 U.S.C §2000ce

F.R.Civ.P. 54(b)

WIs. STAT. §59.69

Wis, STAT. §60.10

WIS. STAT. §60.22

WIS. STAT. §60.62

Wis. STAT. §61.35

Wis. STAT, §62.23

WIS. STAT. §802,05

WISs. STAT. §809.22

WIS. STAT. §895.044

Planning & Zoning Authority

Powers of Town Meeting

General Powers and Duties of Town Board

Zoning Authority (of Town) if

Exercising Village Powers

Village Planning

City Planning

Signing of Pleadings, Motions, and Other Papers;

Representation to Court; Sanctions

Rule (Oral Argument)

Damages for Maintaining Certain Claims and

Counterclaims

Oneida County Zoning & Shoreland Protection Ordinance

Article 1 - General Provisions

Article 2 - Zoning Districts

Article 4 - Conditional Uses and Structures/Home Occupations

Appendix A - Minimum Lot Size: District 5 Recreational

APPENDIX OO Zoning Map of Squash Lake

APPENDIX PP Wisconsin Court of Appeals Notice

re: No Oral Argument 03/05/2019

APPENDIX QQ. Wiscorisin Constitution “No Preference Clause”

Allegations Contained in Federal Amended

Complaint and in state Circuit Court Amended

Complaint

App.

App.

App.

599

653

654

APPENDIX HH

App. 419

No. 2018AP000940

COERT OF APPEALS

for the

STATE OF WISCONSIN

DISTRICT WI

EAGLE COVE CAMP & CONFERENCE CENTER, INC., a Wisconsin non-stock

corporation, ARTHUR G. JAROS, JR., as Co-Trustee of the Arthur G. Jaros, Sr. and Dawn

L. Jaros Charitable Trust, and as Trustee of the Arthur G. Jaros, Sr. Declaration of Trust and

as Trustee of the Dawn L. Jaros Declaration of Trust, WESLEY A. JAROS, as Co-Trustee

of the Arthur G, Jaros, Sr. and Dawn L. Jaros Charitable Trust, and RANDALL 8S. JAROS,

as Co-Trustee of the Arthur G. Jaros, Sr. and Dawn L, Jaros Charitable Trust

. . Plaintiffs-Appellants-Cross-Respondents,

: v. . .

COUNTY OF ONEIDA, Defendant-Respondent,

TOWN OF WOODBORO, Defendant-Respondent-Cross-Appellant,

and

ONEIDA COUNTY BD. OF ADJUSTMENT, Defendant,

APPEAL FROM THE ONEIDA COUNTY CIRCUIT COURT

No, 2013CV345

THE HONORABLE MICHAEL H. BLOOM, Circuit Judge, Presiding

PLAINTIFFS-APPELLANTS’ BRIEF

Michael D, Dean, Counsel of Record Arthur G. Jaros, Jr., Counsel of Record

Michael D. Dean, LLC The Law Office of Arthur G. Jaros, Jr.

350 Bishops Way #201 1200 Harger Road, #830

Brookfield, WI 53005 Oak Brook, IL 60523

(262) 798-8044 (630) 574-0525

miked@michaelddeanllc.com agjlaw@earthlink, net

App. 420

TABLE OF CONTENTS

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES. ....... wv

STATEMENT OF ISSUES. io... cece ccc c eet e tere e eee ne eevee -l-

STATEMENT CONCERNING ORAL ARGUMENT AND PUBLICATION.

Fa -2-

STATEMENT OF THE CASE ...... 0... ccc cce eee eereerevevtvenesas -6-

B) County & Town Land Use Regulatory Scheme ........ cc cce ee ees -1-

C) . Rezone Effort (2005 - August 2006) 2... ec cece eee eee neeeeees ~10-

D) Conditional Use Permit Phase (Fall 2006 - August 2009) ........... -11-

E) District Court Proceeding (March 2010 - February 2013) ........... -13-

F) First Appeal: U.S. Court of Appeals (February 2013 - December 2013)

Pee Renee M ELEN DEERE EEDA E AEN ERD DERE E EEE ORE EeS -15-

G) Wisconsin State Court (November 2013 - present) and First U.S, Supreme

Court (March 2014 - May 2014) Proceedings ...........0ceceeeve -17-

H) _ District Court Motions for Reliefre: Summary Judgment on Federal Count III,

RLUIPA Substantial Burden (Spring, 2015 - Summer 2016) ........ =20-

QD Second Appeal: U.S. Court of Appeals. ........ 0. cece cacae eens =22-

J) Second Appeal: U.S. Supreme Court....... 0... c ccc eeeev ere eeees =22-

K) Reactivation of Cironit Court Proceeding. .........ccccecvesceae =22-

ARGUMENT .0 0.05. e ccc eect e cece e reeset ner eeneretenege 23.

QD THE TRIAL COURT ERRED IN DISMISSING ALL NON-

CERTIORARI COUNTS AGAINST ONEIDA COUNTY AND

WOODBORO ON GROUNDS OF CLAIM PRECLUSION.

A) The Circuit Court Ered, as a Matter of law, in Concluding that

the Doctrine of Claim Preclusion Had Any Prima Facile

Applicability on the Undisputed Procedural Facts of the Case,

FSP -25-

1} The Federal Courts Did Not Dispose of the Entirety of

Plaintiffs’ Case as Submitted in the Federal Court Forum

App. 421

on the Merits (or otherwise with Prejudice) and thus

Claim Preclusion Does Not Apply. ......04.05, -25-

2) Claim Preclusion Can Apply Only When a “Case” Has

Been Fully Concluded; Plaintiffs’ Case, begun in the

federal forum and partly refiled in the Wisconsin state

court forum, Constitutes but a “Single Case” and thus

“Plaintiffs’ “Case” Has Never Been Concluded, . -26-

'B) Even if Claim Preclusion Had Prima Facte Applicability,

Recognized Exceptions to its Operation and/or Applicability

Were Present. oo... ccc c ese c cence eaeeesusucs ~28-

1) The Circuit Court Brred as a Matter of Law in Disregarding

an Express Provision of the Restatement That Bars Application

of Claim Preclusion Where the Right of the Plaintiff to Proceed

in @ Second Forum is Expressly Recognized and Preserved in

the First Forum. 2.0... eee ccc ccee caus cunesensene -28-

2) The Circuit Court Erred as a Matter of Law in Making a

Ruling that It Was “Not Clear” That the Federal District Court

Would Have Declined to Exercise Supplemental Jurisdictional

Over Counts Contained in the state court Amended Complaint

Unique to Wisconsin Law Had They Been Pleaded in the

Federal Coutt Forum. ..... eer ere ern -28.

3) The Circuit Court Brred as a Matter of Law in Refusing to

Consider and/or Rule Upon Plaintiffs’ Argument under the

Restatement thatthe Defendants’ Zoning Scheme Constitutes an

Impermissible Continuing Restraint on the Plaintiffs’ Personal

Liberty Interest in the Exercise of their Religious Beliefs,

4) The Circuit Court Erred as a Matter of Law in Rejecting

Plaintiffs’ Argument that the Decision Making by the Federal

District and Appeals Courts Yielded an Incoherent Disposition

that Eliminates Claim Preclusion, 2.0.0.0... .0.s0cc0, 31.

(i) The federal courts refused to consider or apply the

“He

App. 422

“No Preference” Clause of the Wisconsin Constitution in

the face of express favoritism both on the face of the

OCZSPO and as it was applied for year-round churches

over year-round Bible camps. .........5-,.56. 232-

(ii) The federal couris also failed to apply Wisconsin’s

Constitutional Scheme that affords protections greater

- -than—afforded.-by--federal_law—of_religious—liberties -

under“No Infringement” and “No Interference”

Provisions of Article I, §18. ..... 0... serene -33~

C) By Applying Claim Preclusion, the Circuit Court Denied the

Plaintiffs Rights Guaranteed Them by the U.S. and Wisconsin

Constitutions to Due Process of Law in the Protection of their

Liberty Interest in Fair Judicial Process and in Equal Protection

Of the LAWS. oo cic c esc e eee e teeta ee eeteeeeeenes 735-

D) IfClaim Preclusion Is Not Applicable, then Neither Would Any

of Plaintiffs’ Non-Certiorari Counts Contained in Plaintiffs’

Amended State Court Complaint Have Been Subject to

Dismissal under the Doctrine of Issue Preciusion. ...... ~37-

THE TRIAL COURT ERRED BY DENYING PLAINTIFFS’

RENEWED MOTION FOR RECONSIDERATION THAT

SOUGHT PROSPECTIVE-ONLY RELIEF FROM ANY

CONTINUING PRECLUSIVE EFFECT OF THE FEDERAL

COURTS’ GRANT TO THE DEFENDANTS OF SUMMARY

JUDGMENT ON COUNT It! WHERE SUCH MOTION WAS

BASED UPON AN ADMITTED ERROR. .............05 A2-

THE CIRCUIT COURT ERRED WHEN IT HELD THAT THE

RLUIPA “SUBSTANTIAL BURDEN” GROUND RAISED BY

COUNT I OF PLAINTIFFS’ FEDERAL AMENDED

COMPLAINT “WOULD NEVER HAVE BEEN LITIGATED IN

THIS STATE COURT ACTION”, ........-.0. cece eaees ~45~

TV) THE CIRCUIT COURT ERRED IN ITS APPLICATION OF

-iti-

App. 423

ETANLON.

i

CONCLUSION

i i

SIGNATURES

i a a a

FORM AND LENGTH CERTIFICATE OF COMPLIANCE

-CERTIFICATE OF COMPLIANCE WITH RULE 80919(12) ~~

ELECTRONIC COPY

Cr

-iy-

App. 424

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES.

STATE CASES:

Bielski v, Schulze, 16 Wis.2d 1 (1962) ccc cscs esas ence veeecnerneesneegs 36-

City of Sacramento v. State of California, 50 Cal, 3d 51 (1990) ..........056 42-

Collins v, Eli Lilly Co., 116 Wis. 2d 166 (1984) 0.0.0... cesses eee een ners 236-

Coulee Catholic Schools v, LIRC, 320 Wis.2d 275 (S.Ct. 2009) ........ 14, -33-

County of Kenosha v, C&S Management, Inc., 223 Wis.2d 373 (1999) ...... 36.

Depratt, 113 Wis, 2d 306 (1983)... iii cc ieee cece cence steer ene eeeeees 224.

Edwards v. Fireman's Fund Ins, Co., 147 Ga. App. 27 (Ga Ct. Of App. 1978)

App. 425

Hanlon y, Town of Milton, 235 Wis.2d 597 (S.Ct. 2000) ....., n2A., -A7-, -AB-, -50-

Juneau Square Corp. v, First Wis. Nat’l Bank, 122 Wis.2d 673 (Ct, App, 1985)

Milwaukee Metro. Sewerage Dist. v, Wis. DNR, 122 Wis.24.330 (Ct, App. 1984),

afPd 126 Wis.2d 63 (1985) oo... ee ecececsseceeeveeeseccssesece ce. -32-

Parks v. City of Madison, 171 Wis.2d 730 (Ct App. 1992) ...0000., 3-, -24., -29-

Scott v, Bank One Trust Co,, 62 Ohio 8t.3d 39 01 ~42-

State ex rel. B’Nai B’Rith Foundation v. Walworth County Board of Adjustment,

59 Wis.2d 296 (S.Ct. 1973)

State ex rel. Lake Drive Baptist Church y, Bayside Bd. of Trustees, 12 Wis.2d 585

(S.Ct 1961) ices ececeeeee es eesuveerssssaeebebiberensecscs 29.

State ex rel. Rutherberg v. Annuity & Pension Bd, 89 Wis.2d 463 (1979) 1... -26-

FEDERAL CASES;

-vi-

App. 426

Blair v. Commissioner, 300 US.5 (1937) oc. ccc c cee crear seer een ences 744.

Bolling v, Sharpe, 347 U.S. 497 (1954) cov icceccc cece cect rene retin ee 336-

Christian », Jemison, 303 F.2d 52 (5th Cir, 1962)....... ieee eeesenes vee e 244

Commissioner v. Sunnen, 333 U.S. 591 (1948) 000... c eee ect tren eres 44.

Federated Department Stores v, Moitie, 452 U.S, 394 (1981) .......... 008 44.

First Korean Church of New York, inc. y. Cheltenham Twp. Zoning Hearing Bd.,

No, 05-6389, 2012 WL 645986 (B.D, Pa, 2012) oo. cece cece cee cen e oneness 215-

Inve LG, Servs., Lid,, 2008 WL 783551 (Bankr, W.D.Tex. 2008) ..........- 232.

Lim, Central DuPage Hospital, 972 F.2d 758 (7" Cir. 1992) ....cc. eee -45-

Metromedia v. City of San Diego, 453 US. 490 (1981) oe ccc.ccececse eens Bde

Montano v. City of Chicago, 375 F.3d 593 (7" Cir. 2004) ........00eceeeees 227-

-vii-

App. 427

Moore y, Sims, 442 U.S, 415 (1979)

Schlemm v, Wall, 784 F.3d 862 (7* Cir, April 21, 2015)... -19-, -20-, -35., ~42-,

74B-, -A6-

‘State Farm Mutual Auto ins, Co, v. Duel, 324 ULS. 154 (1945)... 0.0.0. ceae 4d

Whitton v, City of Gladstone, 54 F.3d 1400 (8" Cir, 1995)... 0.0... cece 34

FEDERAL CONSTITUTION AND STATUTES:

28 U.S.C, 812920) occ cece ccc cscccneaeesnueuenpertitetinnans -36-

42, U.S.C. §2000GG, Cf 869. occ c cee cccceen ee saeeeurereusecivenvesce zl

42 U.S.C. §2000c6(8) oo. cic ec ec cten eee ceannteaectauerecesuccunns -13-

42 U.S.C. §2000co(D)(B)(A) oo. cece cece eu ce eee ceuseuaveveeeprveusucuca -14-

AZ U.S.C, §200000-S(7)(B) oo reece see c eee cucvecestseecacuavacttverrenes -6-

~vili-

App. 428

United States Constitution, Fourteenth Amendment.............0c0eeeeeee -36-

FEDERAL RULES:

E.R. Civ. P. 60(D)(5) occ ccc eect ee renee ene tsaeesteeerragere -20-, 21-

F.R.Civ, P. 60(D)(6) occ cee reer reece eee eben teennetea ners -20-, -21-

F.R.Civ.P. 1, 2and3 oo. cece eee e eee ee Veber ener eee e reset eenas -. 27s

F.RCiv.P. (0) 720-, -21-, -35-

OTHER AUTHORITIES:

Oneida County Zoning & Shoreland Protection Ordinance (“OCZSPO”) passim

Restatement (Second) of Judgments passim

STATE CONSTITUTION AND STATUTES:

WIS. STATS. §59,69(1) oo. c cece cece ert e cece trees en susevenenepaeens 10-

“AX-

App. 429

WIs, STATS, §59,69(1) OE n ere nee n nent e et Eee een es bbEreetbetbeepeas “LE

WIS. STATS. §59,69(5)() oo... iisccseseueesavvaseueeesesterisnneacs -8-

WIS, STATS, §59.694(10) ...... 2... 08, beeen e ede e seen ne ena ee adds

WIS. STATS. §§60.10(2)(C); 60.22(3) vo. c.eceescesccceeeueeusseseunecces Pia)

WIS. STATS. §§61.35, 62.23 0... ccceusseecseeucceveeeeuereveseucnes PIE)

WIS. STATS,§806.07 10... cc ccc ccececnsceeeeecesevecteuneevenees 236-, -43-

Wisconsin Constitution, Article I, §18 ............ -14-, ~33., -37-, -38-, -40-, -41-

Wisconsin Constitution, Article T, §9 0... 00. .0.cecceeccceceseuveseccces 236-

NON-PUBLISHED, NON-PRECEDENTIAL CASE DECISIONS:

Peacock y. County of Orange, 2009 Cal.App. Unpub. LEXIS 7999 (Fourth App.

District 2009)

i

1)

2)

- 3)

App. 430

STATEMENT OF ISSUES. -

Did the trial court err in dismissing (and in refusing to reconsider that

dismissal) of all of the Plaintiffs-Appellants’ non-certiorari counts against

Oneida County and the Town of Woodboro on grounds of claim preclusion?

Did the trial court err in denying Plaintiffs-Appellants’ renewed motion for

reconsideration to the extent that it sought prospective-only relief from any

continuing preclusive effect of the federal courts” grant to the Defendants of

pattial summary judgment where such motion was based upon error admitted

by the federal courts (in a different and intervening religious liberties case) in

granting summary judgment against the Plaintiffs—Appellants ona key federal

ground urged by them?

Did the Circuit Court err, either in denying relief or otherwise, when it held

that the RLUIPA! “substantial burden” ground raised in Count Ill of Plaintifis-

Appellants’ federal amended complaint “would never have been litigated in

this State court action”?

*Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §2000cc, e#

seq.

-1-

App. 434

STATEMENT CONCERNING ORAL ARGUMENT AND PUBLICATION,

Oral Argument

Oral argument would materially benefit the Court, Appellants’ arguments: @

are not plainly contrary to relevant legal authority; (ii) are meritorious on their face

_and. supported _by.. authority; andi) -do_not_involve_questions-of_fact..---See.

809,22(2)(a),

The circuit court’s various errors applying claim preclusion doctrine were all

affected by @) the complex procedural history of the case, including the federal

district and appellate courts’ reliance on precedent they later acknowledged--while the

certiorari count of Appellants’ claim was still pending in state court--was wrongly

decided, (ii) Wisconsin courts’ inconsistent usage of terminology {e.g., “action,”

“cause of action,” “claim,” “count,” etc.) in examining the unitary transaction of

events that is the basis of claim preclusion analysis, and (iii) the extensive number of

sub-issues and sub-rules presented in applying general claim preclusion doctrine to

the novel facts of the case.

Oral atgument presented by counsel conversant with the broad range of issues

and law would therefore assist the court in testing and harmonizing application of that

doctrine, Sec. 809.22(2)(b),

App. 432

Publication

Publication is appropriate under § 809,23(1)(a).

Sec. 809.23(1)\(a)l. While the general “‘rule of law” at issue is the familiar doctrine

of claim preclusion, its application to the novel procedural facts of this case will

_. oteatenew law in Wisconsin, For example, this Court must decide whether the circnit

court was correct, as a matter of law, when it concluded that the federal district court

would “clearly” have declined to exercise pendent jurisdiction over Appellants’ state

law equal protection, due process, and no preference counts,’ even though the

constitutional rights and theories at issue in those counts ate exactly the same tights

and theories at issue in the “incorrect theory of law” element of Appellant’s certiorari

count that the district court did explicitly decline to consider because of its

unfamiliarity with those state law issues.

Sec. 809.23(1a)2. The “facts” of this case are its procedural history—no trial

or evidentiary hearing having been conducted in either the federal or state court

forums--and there is no reported case with this fact pattern, The district court dismissed Appellants’ federal RLUIPA counts with prejudice, dismissed one of their

state law religion counts with prejudice without addressing their “No Preference”

count, and expressly declined jurisdiction to consider whether the defendant Board

applied an “incorrect theory of law” in denying their state law equal protection, due

2B, 48:8, citing Parks v. City of Madison, 171 Wis. 2d 730, 492 N.W.2cl 365 (Ct. App.1992).

3-

App. 433

process, and no preference rights at issue in their §59.694(10) certiorari count.

Then, while Appellants’ §59,694(10) count was still pending in state court, the

federal courts acknowledged that their rationale for the grant to the Defendants of

summary judgment of one of Appellants’ federal RLUIPA counts was erroneous, Yet

neither the federal nor the state courts granted Appellants any relief they had sought,

even though Appellants’ state certiorari count was still pending, No reported cases

examine application of claim preclusion doctrine to litigants’ rights under those facts,

Sec, 809.23(1)(a)4. As stated above, the extensive number of sub-rules and

sub-issues presented in applying general claim preclusion doctrine to the facts of this

case will entail a comprehensive review and harmonization of the body of claim

preclusion law, including consistent use of terminology.

Sec, 809.23(1)(a)5. Further, this case also presents issues of substantial and

continuing public interest, The procedural issues alone are of broad-based interest

because challenges to zoning decisions are commonplace, and virtually all such

challenges implicate state equal protection and due process rights under a certiorari

review’s “incorrect theory of law” element. Further, federal constitutional and

statutory rights of such litigants are also frequently at stake in such cases, as they are

here,

App. 434

Gewerally, Finally, the state and federal constitutional and civil rights at issue

here are of grave significance in and of themselves:

(i) This case involves the critical issue of the protection of Appellants’ right

to free exercise of religion in the face of increasing secular attacks including attacks

madeb ry local governmental units upon such sacred and cherished constitutional right;

(ii) In the federal court phase of this case, the federal courts have shown remarkable hostility to the protection of such right, have admitted applying an incorrect

standard to deny the Plaintiffs protections afforded by and under federal law and then

refused to correct such error and, above all, have shockingly held in published rulings

that Wisconsin law affords no greater protection of religious liberties than does

federal law with abject disregard for the important, proud, consistent and long line of

Wisconsin. judicial decisions that holds precisely the contrary;

(iii) this case presents as an important matter of first impression the

application of the “No Preference” clause contained in Article 1, §18 of the Wisconsin

Constitution where the Defendants expressly preferred, both on the face of their land

use regulatory scheme and as it was applied by them, institutional churches over Bible

camps.

App. 435

STATEMENT OF THE CASE’

A) Appellants’ Desired Religious Use of the Land

Plaintiffs Arthur, Wesley and Randall Jaros, are brothers and co-trustees of an

IRS-approved §501(c)(3) charitable trust, They also serve as sole members of the

governing board of Eagle Cove Camp & Conference Center, Inc, CECCE&CC”)--

likewise §501(c)(3)-approved-- formed to develop anew year-round Christian camp —

on thirty-four acres* of land with 550’ of frontage on 400-aore, clear water Squash

Lake situated in Wisconsin’s “Northwoods” within the Defendants’ jurisdictions 5

The Jaros brothers’ Christian faith, rooted in their Biblical stewardship

understanding (“first fruits” and offerings “without blemish,”*) compelled them to

dedicate and convert’ those thirty-four acres ~ family-owned for over sixty yeats—to

full-time Christian ministry as a Bible camp, serving youth, including youth with

medical disabilities, during the summer season and older teens and adults during the

3“RY* throughout this Brief refers to the Index issued by the Cirouit Court Clerk, “DCD” refers

to the federal district court docket number for 10-ev-118 (W.D, Wis. 2010) in the original,

predecessor federal proceeding, as explained at p, 17, infra. Unless otherwise indicated,

“Appndx.” and “App. _” refer respectively to lettered appendices and appendix page numbers

contained in the Plaintiffs’ 2017 Petition for Writ of Certiorari to the United States Supreme

Court in Docket #16-1444, included in the record below. “SA” references the Separate

Appendix accompanying this Brief,

‘Approximately twenty-nine acres owned by the charitable corporation and approximately five

acres owned by the charitable trust. The camp also has permission to passively use

approximately twenty-four acres of immediately adjacent land held jointly under the two trust

declarations., R#77|App.86, .

SRHT7|App.83-85,

Deposition of Arthur Jaros, DCD#H#83,84 at transoript p.245.

742. U.S.C. §2000cc-5(7)(B), re: “conversion” of land use,

b=

App. 436

remainder of the year® Arthur and Randall desire to personally teach Christian -

education courses at camp,” The federal courts found “undisputed”:

Eagle Cove believes that their religion mandates that the Bible camp must be on the

subject property, Eagle Cove also believes that they must operate the Bible camp

on a year-round basis, (R.#87|App.143).

“BY --County & Town Land Use Regulatory Scheme

The entire parcel is subject to the laws and regulations of both the Town and

County and is located in zoning districts “2” and “4,” per the zoning map for

Woodboro.” - Per STATS. §§60.10(2)(c) and 60,22(3), the Town’s electorate on

April 12, 2005 conferred “Village Powers” upon its Town Board," vesting it with

land use planning power. STATS, §§ 60.22(3), 61.35, 62,23, On April 14, 2009, the

Town Board adopted a Comprehensive Pian,” a/k/a “Master Plan,” incorporating

the Town’s 1997 Land Use Plan'* adopted during 1998" to serve as a future

development planning guide.!® Stats. §59.69(1) requires the County’s zoning

ordinance to “incorporate” the Town’s plan, As consistently construed and applied

5R#TTApp.87-89.

°Amended Complaint, (28 at RA10|SA4; same as federal Amended Complaint at R#24|SAL, J

19). .

(OR #77 at App.89; RAT7|App; R¥87|App.143; R#92|App.275,

" DCp#61-7,

amended Complaint, [66 at R#10; federal Amended Complaint, 953 at R.24,

grav. §§ 66.1001(1)(a)2, 66.1001(2)(h).

“4neDH#63-20.

‘SR487|App.141 (734 F.3d at 676); DCD# 63-20, p, 11.

‘6WIS, STAT. §§ 60.62(4), 62.23(2); DCD#63-19, Chapter 7(D), ECF pp. 60 £f& DCD#103-40.

-T-

App. 437

by the Defendants, the Town’s Land Use Map doesn’t allow any year-round religious

camps anywhere within Woodboro,!”

During the first half of 2000, the County adopted, per STATS. §59.69(5)(d), a

comprehensive revision to its existing zoning ordinance, namely the OCZSPO, that

created thirteen discrete zoning districts" and included a zoning map for each of the

County’s twenty Towns (including Woodboro),"° Woodboro’s zoning map*

reflected its 1997 Land Use Plan*! and continues to reflect it as incorporated into its

2009 Comprehensive Plan. Thel 997 Plan didn’t provide any location for Plaintiffs’

religious land use.” Per statute, the OCZSPO took effect upon County Board

enactment in shoreland areas throughout the unincorporated portions of County

including part of Plaintiffs’ property? The OCZSPO took effect for non-shoreland

areas including the balance of Plaintiffs’ property only upon approval by Woodboro’s

Board (May 8, 2001 Resolution”),

Within each zoning district, three categories of uses ate provided:”*

(1) Permitted-as-of-right;

“R-77App.100; R.86|App.111).

‘R.77/App.89; R,90|App.247 (§ 9.20).

SDCDH103-3 to 103-22,

DH CD#103-21, |

(DCD #63-20,

22)CD#63-19, Chapter 7(D), ECF pp. 60 ££, DCD#103-40,

RQ 90|App.247(§ 9.12(8))

"dd; R.77|App.89; R.871App.142;DCDH61-6,

2. TTApp.90; R.90[App.250.

8.

App. 438

(2) Administrative Review; and

(3) Conditional,

The OCZSPO doesn’t denominate any use for “religious camps” whatsoever.

Instead, the Defendants determined that Plaintiffs’ proposed year-round Bible camp

use would be treated under “recreational camps” that aren’t permitted-as-of-tight

uses in any zoning district but are listed by §§9.25 and 9.28 of the OCZSPO only as

administrative review uses and then only for zoning Districts 5, “Recreational,” and

10, “General Use.””’ Therefore, there wasn’t anywhere within the County where

Plaintiffs could construct their camp as-of-right.

The camp’s easterly lakefront portion was zoned District 2, “Single Family

Residential,” the westerly portion abutting U.S. 8 was zoned District 4, “Residential

and Farming.”"®> “Churches” and “schools” are listed conditional uses for various

districts, including Districts 2 and 4,”

26R DIApp.58,

2 77\App.100; R.90|App.259; R.90|App.261).

28R.77|App.100; R.87|App.143.

R.77|App.97; R.90|App.254; R.90|App.257, Other listed uses in the County's zoning districts 2

and/or 4 include community buildings, community living arrangements of unlimited capacity,

government uses of any type, public patks and playgrounds, hospitals, airports, and businesses,

(B.77|App.97; R.90|App.252; R9O|App.256). The County acknowledged and substantial

evidence was presented that these permitted uses could have equal or greater impacts to the

relevant land use interests at issue. [As admitted by the Defendant County’s Seventh Circuit

Brief in #13-1274 at p. 52 and at p. 53, footnote 9, See also, Plaintiffs’ expert report at

DCD#132, p. 249, County staff report at DCD#63-51, p, 12; DCD#77-5 at 22, 23; OCZSPO §§

9,22 and 9.24 at Appndx.RIR.90|App.252-258; and Business-zoned districts at Squash Lake

(Appndx.T|R.82|App.275}, such evidence presented to the Seventh Circuit by Appellants’ Brief

at pp. 50-51 and 54-58 and by Reply Brief, pp. 42-48 in #13-1274.]

9.

App. 439

None of the Town was zoned District 5 or 10 under the zoning map” included

as part of the OCZSPO that was formally adopted by the Town’s Board®! and which

map was required to and did” incorporate the Town’s own land use plan. STATS,

§59.69(1), Consequently, Plaintifts’ year-round Bible camp use is totally excluded

from Woodboro.

C) — Rezone Effort (2005 - August 2006)

County staff initially advised Plaintiffs during 2005 that tezoning of the

camp’s land to District 5 or 10 was required.® After proceedings before the Town

and County,”* the County on June 14, 2006 expressly informed the Plaintiffs that the

rezoning petition filed in December, 2005 wag unnecessary and that the camp could

accomplish “most or all of its stated objectives” without any rezoning by using the

County’s CUP procedure.** As noted, Plaintiffs’ “stated objectives” were to construct

a single principal structure, year-round Bible camp on long-owned family lands in

Woodboro, The Committee assuted the Plaintiffs that:

there would be no delay, uncertainty or added expense born [sic] by the parties

seeking this rezone ...

50R.77|App.100,

*R.77|App.89 (DCD461-6),

PR T7App.94,

SR.77|App.100.

MR 87/App.143.

*R.87/App.143; DCD#63-29,

482 .85/App.24,

~10-

App. 440

given that “religious exercise” is allowed on the property with a conditional use permit in

the districts that the property is currently zoned... .

Consequently, the County Board denied rezoning in August, 2006,”

D) Conditional Use Permit Phase (Fall 2006 - August 2009)

The Plaintiffs then proceeded through the discretionary CUP process per the

County’s explanation for denying rezoning. ‘That process required the submission of

a site-specific design.* During Fall 2006, the camp selected an architectural and

engineering team to do so.” ~The County began processing the application filed in

December 2006.

Contrary to the federal courts’ inferences that the “sheer size” of the camp’s

29 4

development was unusually “expansive”,”' the camp was, infact, of only average size

for year-round Oneida County camps,”

As a condition of its further processing the CUP application, County staff

required Plaintiffs to procure site-specific permits from various departments of the

state government including grading, well-water, sanitary system and ingress/egress,

77R TT|App.10L; R.87|App.144.

38R 77/App.91; R.90|App.263; DCDH63-37,

“The design is set forth at R.77|App.88; R.77|App.105 and as submitted at DCD## 63-38, 63-44

and 63-45, Instead of multiple, scattered stand-alone cabins typical of camps (see, OCZSPO, §

9.25(C)(3) at R.90[App.259 and fin. 9[R.77|App.96, respectively), ECC&CC’s design instead

provided for a single, larger multi-function lodge structure. R.77|App.88.

°R,86|App.123.

“le 87/App.152.

“NcDH63-53, at ECF p,19 of 27, “clearly of average size for a Bible camp”; DCD#103-1;

DCD#103, point 3, DCD#102, point 12.

R-77App.105.

-11-

App. 441

The camp incurred costs approaching $200,000 for professional services and

successful procurement“ of those permits from the State government between

Autumn 2006 and late 2008,” The design complied with the objective minimum

acreage and dimension requirements applicable to Recreation Camps,” a tevised

design submitted in May 2009 voluntarily reduced the height to the 35’ height limit

applicable only to single family residences,” and the County’ s staff informed the P&Z,

Committee favorably of the camp’s resolution of all of the staff's “technical

8 But at its July meeting, the Committee denied ECC&:CC’s

concerns,

application, concluding ECC&CC’s use wouldn’t be “compatible with ... local plans

for the area.’”? The Committee also found that ECC&CC’s use would impair or

diminish neighboring properties, despite acknowledging there was “nothing to base”

that finding upon.” Significantly, the Committee (and later the Board of Adjustment

(BOA”)) ignored the findings of the Wisconsin DNR that ECC&CC’s Bible camp

; was designed in a manner fully consistent with the statutory requirement of preserving

“scenic natural beauty” — in contrast to other uses on Squash Lake, including an

apartment complex (whose largest building is openly perched overlooking the lake),

“Appnds.D at R.76}App.35; DCD##77-23, 77-24, 77-25,

“R 7TApp.105 ; DCD#144-5, pp. 13, 14, Schedule A, Columns O, Q-7.

46 90|Anp.271,

“DCD#63-46; DCD#110-4, p, 24, see, fa, 13]R.77|App.106,

“8OCD#110-4, p.24,

“OCZSPOS 9.42(8)(3) at R.77|App.92; R.90|App.267,

°R.75[App.54; see, R.75|App.60 at “2,”

~12-

App. 442

various lake parcels zoned Business, and homes with manicured lawns extending to

the lake shore!

Remarkably, after ECC&CC spent multiple years and $200,000 following the

Committee’s direction to pursue a conditional use permit because rezoning wasn’t

necessary, the Committee reversed its position in July, 2009, concluding that

rezoning was necessary after all and that ECC&CC’s Bible camp wasn’t compatible

with the Town’s Land Use Plan.“ The District Court found this treatment didn’t

constitute an RLUIPA “substantial burden.”

Plaintiffs unsuccessfully appealed to the BOA.*

EB) _ District Court Proceeding (March 2010 - February 2013)

Plaintiffs commenced their civil action on March 10, 2010 in federal District

Court (W.D.Wis.).* Count HIraised RLUIPA’s” “Substantial Burdens” ground (42

U.S.C, §2000cc(a))* and Count XI raised Wisconsin’s state law certiorari review

ground.” Count VII, “Wisconsin Constitution,” included various allegations, some

specific to the “No Preference” Clause, (See, SA12).

51A ppndx,S[R.91[App.273; Appndx, T[R.82|App.275; R.75|App.43,

32 nondx.FIR.75|App.56£f,

8Transcript at DCD#I10-4, pp. 71-72; see, R.75|App.62, point “7,”

“Tyansoript at DCD#110-4, pp. 63; see, R.75|App.61 at “3,”

554 ponds.G]R.75|App.68.

SSNCDHL, .

5Religious Land Use and Institutionalized Persons Act of 2000.”

**Federal question jurisdiction existed per 28 U.S.C. § 1331.

*RS6lApp.109.

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