Plaintiff (property owner) accuses Defendant (municipality) of violating due process rights

Oliver Fiontar, LLC’s legal battle against the City of Cedarburg has hit a roadblock as the Court of Appeals upheld a circuit court decision to dismiss its petition for judicial review. The case, filed by Oliver Fiontar, LLC in the Circuit Court for Ozaukee County on October 25, 2024, challenged an order from the City of Cedarburg requiring the company to vacate and cease using a property due to lack of an occupancy permit.

The conflict began when Oliver Fiontar acquired a commercial property in Cedarburg in 2018. The property was contaminated, and Oliver agreed to develop it only if the City undertook cleanup efforts. While waiting for remediation, Oliver secured the site with fencing and stored items there. However, in August 2024, after reporting vandalism at the site, Oliver received an order from the City’s building inspector to stop all occupancy until an occupancy permit was obtained. This order cited a zoning ordinance mandating permits for commercial property use.

Oliver appealed this order to the Board of Appeals but was denied on September 25, 2024. Subsequently, Oliver filed a lawsuit against the City rather than the Board of Appeals. The City moved to dismiss this suit citing improper party naming based on precedents like Acevedo v. City of Kenosha and Zelman v. Town of Erin which require actions be brought against decision-making bodies like boards rather than municipalities themselves.

Oliver argued that their due process rights were violated by what they deemed an arbitrary and oppressive order unsupported by evidence. They sought relief under Wisconsin Statutes § 68.13 and local ordinances but faced dismissal as they had not named the proper party—the Board of Appeals—in their petition.

Despite requesting permission to amend their petition during proceedings, no formal amendment was filed before or during hearings. Consequently, Judge Adam Y. Gerol ruled that without naming the correct party within statutory time limits, he lacked jurisdiction over any further filings related to this matter.

Representing Oliver Fiontar is attorney Samuel A. Christensen while judges Neubauer P.J., Grogan J., and Lazar J., presided over this appeal identified as Case No. 2025AP385.