GREENWOOD TWP- Vermilion Ventures, doing business as BayView Lodge, is threatening litigation against the Greenwood Town Board. The action, called a Notice of Claim, is the first step that is taken when pursuing a legal judgement against a governmental unit over alleged losses or injuries.
The Notice claims that the township’s actions have had a “chilling effect” on the First Amendment rights of the claimant, noting that music is a form of expression entitled to protection. In addition the Notice claims that the township is drafting an “Ex Post Facto” conditional use permit to reflect actions taken in 1999, which is a violation of both Minnesota and township statutes. In addition, it claims that the town board’s actions at the May 14 meeting, where they rescinded previous permission for outdoor entertainment, was a violation of the due process requirements of federal, state and township law.
The Notice of Claim does not specify actual damages, which they said are ongoing and include lost profits as well as the diminution of the business’s value.
The Greenwood Town Board met in an hour-long closed session, Tuesday, with their township attorney Scott Neff, but did not take any action. Bay View is being represented by attornies Shawn Reed and Steven Overom, from the Duluth firm Maki & Overom.
Neff, in response to a question from the audience at Tuesday’s town board meeting, said a Notice of Claim had been sent to the township, but no actual lawsuit had been filed at this point in time.
The Notice, dated June 3, was served to Greenwood Township, Julia Maki, all five town board members, Treasurer Delores Clark, and Clerk Ellen Trancheff. The Notice also said that the named parties are not permitted on the premises of BayView without prior written approval by the owner or a court warrant.
The township, at their May meeting, passed a resolution rescinding any past permission for outdoor entertainment that had been granted by the town board as part of their liquor license application approval. The township had permitted, the last two summers, outdoor music during specified hours as part of the business’s liquor license. The township is now asserting that live outdoor music on the decks at the bar/restaurant is a violation of the business’s conditional use permit and has threatened to revoke the CUP if outdoor music is permitted.
Previously, Planning Director Julia Maki has noted that using the decks for outdoor music was never mentioned during the 1999 CUP process. She also said the township does have the authority, under its zoning ordinance, to regulate uses that are not specifically stated in the ordinance. The township’s zoning ordinance does not mention outdoor music or noise.
The township held a public hearing on the issue in May.
At that hearing, Shawn Reed, the attorney representing Bay View operator Alissa Sundberg, said since there are no current ordinances dealing with noise that the issue didn’t fall under the purview of a CUP.
“If there are no ordinances,” he said at the hearing, “there are no standards. You cannot assure that all will be treated the same.”
Public input on the matter has been mixed, with many supporting the business and their right to have outdoor music as a way to attract customers and generate income, but with many others speaking eloquently of their right to enjoy their own property without being subjected to loud music.
The outdoor music has generated numerous complaints from neighbors across Big Bay, who have objected to the late-night noise. In addition, nearby neighbors have complained about rowdy behavior after hours on the property.
Bay View, which is operated by Vermilion Ventures, underwent a change in ownership last fall, with co-owner Alissa Sundberg taking full control of the business. Sundberg is also the owner/manager of the Sawmill Saloon in Virginia. Sundberg is now living on site, and acting as the hands-on manager.