A group of people gather at W3936 County ES in Elkhorn on June 22, 2018. The gathering is the subject of a dispute between Walworth County and the owner of the property, John Neighbors, an Elkhorn man who says the zoning citations he got were racially motivated.

An appeals court on Wednesday denied an Elkhorn business owner’s claim that the $4,000 in zoning citations Walworth County gave him were an instance of racism.

John Neighbors, who is black, on Feb. 3 appealed Walworth County Judge Kristine Drettwan’s July decision that there was not enough evidence to show the six citations the county Land Use and Resource Management Department gave him were racially motivated.

Neighbors and his attorneys argued they shouldn’t need to show blatant acts, such as a racial slur in an email or a Confederate flag hanging in an office, to demonstrate an act of racism.

The June 2018 gathering of more than 200 people on Neighbors’ property ran in conjunction with a Grateful Dead tribute concert at the Alpine Valley Music Theatre in East Troy, according to court documents and testimony.

The citations were for having a campground on property zoned A-2 and for having a campground without proper conditional use and approval, which the county said is different than just having a tent on someone’s property.

The county had argued in court documents that Neighbors pleading guilty—as he did after Drettwan’s decision because the basics of what happened weren’t really in dispute—meant he waived his right to an appeal.

The Second District Court of Appeals disagreed. It then considered the argument about the citations and decided against Neighbors, saying Drettwan’s decision was not “clearly erroneous.”

Neighbors had to show the citations had a discriminatory effect—that Neighbors was singled out—and a discriminatory purpose—that the county singled out Neighbors because of his race.

During court proceedings, Neighbors brought in several witnesses from law enforcement and other professions in Walworth County to share that they all had seen instances of camping go on without citations. His side asked how something could be so rampant and enforced only on a black man.

But when looking at the discriminatory effect, the appeals court said “it was not clear” those instances were on properties that were not in line with zoning ordinances or that the county Land Use and Resource Management Department, known as LURM, was made aware of it.

“In addition, many of these instances were small in scale and did not involve the potential safety hazards associated with large festival-type events,” the decision states.

The more similar example Neighbors and his attorneys brought up was Wise Fest, but the appeals court accepted the county’s argument that county officials knew about that event only after it ended and therefore wouldn’t cite them.

The appeals court said pointing out that a black man was punished with citations in a county with such a small percentage of black people was an “insufficient basis to infer that (zoning officer Nicholas) Sigmund or LURM was motivated by racial bias.”

“To the extent this can be considered a solitary prosecution, the trial court also correctly found no evidence of bias against Neighbors personally,” the decision states.

It was not immediately clear if Neighbors will ask the state Supreme Court to review the case.