Issue

Also in this issue: Municipal Interventions in PSCW CPCN Proceedings for Utility Infrastructure     |     Update on the Scope of Arrest Record Protections     |     PSC Investigating Construction Cost Overruns on Electric, Gas, and Water Projects

One-Time Beer Sale Didn’t Preserve Bar and Restaurant’s Nonconforming Use Status

Julia Potter | 10.15.25

In a recent case, Doubleday v. C. Goeman Properties V LLC, 2024AP742 (August 13, 2025), the Wisconsin Court of Appeals held that the sale of a ​“beer or two” to a banker in a former bar and restaurant that was otherwise closed to the public and unfit for occupancy did not preserve the property’s nonconforming use protections under the local zoning code.

The case concerned a piece of property that had historically been operated as a bar and restaurant. The property was rezoned to residential in 1999, but the bar and restaurant was allowed to continue operating as a nonconforming use under the local zoning code. However, the zoning code provided that nonconforming use protection would be lost ​“where any such nonconforming use is discontinued for a period of twelve (12) consecutive months” and in that case, ​“any future use of the building, structure, or land shall conform to the regulations of the district in which it is located.”

The owner continued to operate the bar and restaurant until September 10, 2017, at which point he shut it down for economic reasons. When he stopped paying his mortgage on the property, his lender foreclosed and ultimately sold the property to C. Goeman Properties V LLC (Goeman), the defendant in this case. Goeman reopened the bar and restaurant for business on April 16, 2019 and the neighbors objected, arguing that the property had lost its protected status as a nonconforming use under the local zoning code because the bar and restaurant had been closed for more than 12 months. The neighbors brought a private zoning enforcement action and asked the court to find that the property’s nonconforming use had lapsed and to issue an injunction preventing any further use of the property as a bar and restaurant.

Goeman disagreed with the neighbors and claimed that the former owner and the lender had taken steps to ensure that the property’s nonconforming use protections would not lapse. An employee of the lender testified that he had been concerned that the property would lose its nonconforming use status if it remained closed for too long, so he arranged to meet the property owner on site on May 5, 2018 and have the owner sell him ​“a beer or two” to ​“deal with the nonconforming issue.” Apparently the employee had used this same strategy at other properties at least a dozen times, and described one instance where he had the owner of a closed business meet him at the property and sell him ​“Kwik Trip donuts and a Busch Light” to avoid lapse of the property’s nonconforming use status. In Goeman’s view, this one-off sale of a ​“beer or two” to the lender’s employee within twelve months of when the business first closed was sufficient to continue the nonconforming use of the property as a bar and restaurant, even though the bar and restaurant did not reopen to the public until months later.

The Court of Appeals disagreed. The evidence showed that, at the time the beer sale took place, there was no electricity to the building, there had been a water break due to a freezing issue, the refrigerator and freezers were left open and empty of food, there was no staff on the payroll, and the building was ​“cold, dark, dirty, and stinky and had a musty odor.” The Court of Appeals found that a ​“one-time beer sale” to a lender’s employee in a building that ​“was never held open to anyone of the public, during which the premises was otherwise entirely unfit for food or beverage service, [and] unfit for occupancy does not establish that the property was being used as a bar and restaurant during the relevant twelve-month time period” (internal quotation marks omitted). Therefore, the Court found that the property’s nonconforming use protection under the local zoning code had lapsed — it could no longer operate as a bar and restaurant and instead must comply with all of the requirements of the residential zoning district in which it was located.

The outcome of this case should come as no surprise, but it is a good example of the strategies property owners and lenders sometimes employ to claim continuation of a nonconforming use, and a reminder to municipalities to interrogate those claims rather than simply accepting them at face value.