COURT OF APPEALS DECISION DATED AND FILED November 17, 2009
David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM.
Background
¶2 Carolyn and
¶3
Discussion
¶4 The Borsts argue Carolyn’s due process rights were violated
by the City’s failure to serve her with the raze order as required under Wis. Stat. § 66.0413(1)(d). The statute provides: “[A raze order] shall be served on the owner
of record of the building that is subject to the order or on the owner’s agent
if the agent is in charge of the building in the same manner as a summons is
served in circuit court.” Wis. Stat. § 66.0413(1)(d). Here, a warranty deed dated January 7, 1999,
lists both
¶5 In its decision, the court also intimates Carolyn was
properly served by operation of Wis.
Stat. § 66.0413(1)(e), which provides: “If a raze order … is recorded with the
register of deeds …, the order is considered to have been served, as of the
date the raze order is recorded, on any person claiming an interest in the
building or the real estate as a result
of a conveyance from the owner of record unless the conveyance was recorded
before the recording of the raze order.” (Emphasis added.) We interpret this subsection to apply in
situations where, for instance, a conveyance is made during condemnation
proceedings. Because Carolyn and
¶6 Finally, the court concluded the non-service argument was
waived. The court held that neither
Carolyn nor
¶7 Based on the hearing testimony, the court may have implicitly
found that Carolyn had actual notice of the raze order, even in the absence of
proper service. The statute, however,
mandated service of the raze order on the owner[s]. This court has held that where the clear and
unambiguous language of a statute mandates service, actual notice will not
suffice. See Pool v. City of
¶8 To the extent the City may argue that service on
By the Court.—Order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version.
[2] Because this issue is dispositive of the
appeal, we need not address the Borsts’ alternative arguments. See
Gross
v. Hoffman, 227
[3] Wisconsin Stat. § 66.0413(1)(b) governs raze orders and provides, in relevant part, that the governing body, building inspector or other designated officer may:
If a building is old, dilapidated or out of repair and consequently dangerous, unsafe, unsanitary or otherwise unfit for human habitation and unreasonable to repair, order the owner of the building to raze the building or, if the building can be made safe by reasonable repairs order the owner to either make the building safe and sanitary or to raze the building, at the owner’s option.