Planning commission recommends limited conditional use for Racine Street bar despite operating irregularities

The Delavan Planning Commission voted to recommend that the Common Council approve a limited conditional use permit allowing indoor commercial entertainment and an in‑vehicle sales/service (drive‑through) at 1265 Racine Street, subject to conditions including additional parking and other requirements listed in the staff report.

The petition covers two related applications considered at the March meeting: a public hearing on a zoning petition for 1265 Racine Street and a separate conditional‑use petition to authorize indoor commercial entertainment in a Business Local B zoning district with a wellhead protection overlay. The commission’s recommendation will go to the Common Council for final action.

The item drew extended questions from commissioners about whether the business — operating under new management identified in the record as operator Mark Schmuck and with owner Lisa Churchill named on property paperwork — was already open even though the conditional use had not been finalized. Andy, a city staff member, acknowledged that the facility had been operating and said, “it would have been me. So I apologize for that.”

Commissioners pressed the petitioner on a range of operational details. Schmuck said proposed drive‑through hours would be 6 a.m. to midnight, that the facility now lists about 17 indoor seats plus two picnic benches outside (about 25 total), and that he intended to sell additional items if permissible: “I would like to sell whatever we can. It's based on focused on revenue.” Commissioners asked whether the business planned to offer smoking indoors or to operate gaming devices that pay out money to customers; Schmuck said he had not yet set up a smoking area and acknowledged uncertainty about website wording describing gaming. Staff and commissioners cited state statute language restricting payout machines and a city ordinance that treats certain gambling devices as a public nuisance.

Commission discussion focused on three practical concerns: whether the earlier conditional use (from 2019) was a limited permit tied to an applicant or a regular permit that runs with the property; whether the current operator could lawfully open before council approval; and whether the planning commission should impose conditions that would prevent payout‑style gaming machines or smoking on the premises. Staff located a 2019 resolution in the record that identified a limited conditional use; commissioners said that past paperwork had inconsistent wording (the top of the document showed “regular” while the conditions signed indicated a “limited conditional use”).

At one point a commissioner argued against broad conditions on future operator activity, saying, in effect, that enforcement of state law and nuisance ordinances is the role of enforcement agencies rather than the planning commission. Another commissioner pushed to include explicit conditions. A proposed amendment to the commission’s motion to require the facility be maintained as nonsmoking and to ban gambling machines that pay customers failed to receive a second and was not adopted; commissioners discussed that enforcement of such conditions could require code enforcement action and, if violated, could lead to fines or rescission of the conditional use.

The motion forwarded to the Common Council recommended approval of the limited conditional use findings listed in the staff report with the additional requirements noted in the staff memo (including reservation or construction of additional parking stalls). The commission approved that motion by voice vote; the record does not list a roll‑call tally.

Why it matters: the item concerns downtown commercial activity, off‑premise impacts (drive‑through circulation and future right‑of‑way changes), and how local land‑use controls interact with state rules on gambling devices and nuisance enforcement. Commissioners noted that a Wisconsin Department of Transportation preliminary plan to rebuild the nearby Highway 11 intersection in roughly two to five years could alter the property frontage and the drive‑through exit, and staff said the city might need to eventually acquire right‑of‑way.

Details commissioners highlighted in discussion include a staff recommendation that the applicant provide additional parking (eight new stalls to supplement nine existing stalls), uncertainty about whether past outdoor seating approvals carry to the new operator, and the city’s limited direct enforcement capacity over payout‑style gaming machines (state Department of Revenue and police may be involved). Staff noted enforcement remedies in city ordinance for conditional use violations (fines and possible rescission).

The commission’s recommendation and the related staff conditions will be transmitted to the Common Council for final review. The commission did not adopt the failed amendment that would have explicitly prohibited smoking on premises and payout‑style gaming devices as part of its recommendation.

Provenance: The public hearing and initial notice for 1265 Racine Street appear in the transcript at the start of the item’s hearing, and the record closes at the motion and vote forwarding the recommendation to the council.

Ending: The Common Council will receive the commission’s recommendation and the staff conditions for final action; the commission’s discussion and the staff’s note that the business was already operating without a finalized conditional use are now part of the public record and were cited repeatedly by commissioners during deliberations.