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COURT OF APPEALS DECISION DATED AND RELEASED March 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0489
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
UNITED LODGES OF
S.N.P.J.,
a Wisconsin
corporation,
Plaintiff-Appellant,
v.
CITY OF BROOKFIELD,
a municipal
corporation, and
its officers, agents
and
employees,
Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Waukesha County:
MARK GEMPELER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER CURIAM. United Lodges of
S.N.P.J. (United) appeals from a summary judgment in favor of the City of
Brookfield. Because the City's order to
raze United's dilapidated building was a proper exercise of its police powers,
we affirm.
United operated the
Arcadian Inn. In June 1992, the City
issued an order noting numerous deficiencies in the facility. The order declared the structure a public
nuisance and a danger to health and life, and required United to terminate
operations, vacate the premises and either rehabilitate or raze the structure
within sixty days of service of the order.
United sought review of the June 9 order before the City's common
council. The City declined to afford
such review and suggested that application to the circuit court for a
restraining order pursuant to § 66.05, Stats.,[1]
was the appropriate remedy. United then
filed an action challenging the constitutionality of the ordinances cited in
the order, §§ 14.03, 14.04 and 14.05 of the City of Brookfield Municipal Code
of Ordinances, and obtained an ex parte order enjoining enforcement of the
June 9 order.[2] The parties subsequently stipulated to
rescinding the June 9 order, lifting the temporary injunction and
dismissing the action to permit the parties an opportunity to settle.
Settlement did not occur
and a second raze order was issued on October 25, 1993. United sought a restraining order in the
circuit court and damages for the alleged inverse condemnation of the Inn
during the period from June 9, 1992, when the first raze order was issued, to
October 25, 1993, when the second raze order was issued. United sought damages on the grounds that
the June 9 order deprived United of reasonable use of its property resulting in
a "temporary taking" without just compensation. The parties subsequently stipulated that the
alleged inverse condemnation period would be from June 9 to October 7, 1992.[3] This was the issue submitted to the circuit
court for decision.
The City sought summary
judgment on the following grounds: (1)
the June 9 order was a proper and reasonable exercise of its police powers; (2)
United's inverse condemnation claim was barred by the exclusive remedy
provisions of § 66.05(3), Stats.;
(3) the City was immune from liability pursuant to § 893.80(4), Stats.; and (4) United failed to allege
or establish that the City imposed a legally enforceable restriction on the use
of the property.
The circuit court ruled
that it was undisputed that the Arcadian Inn was dilapidated and properly the
subject of a raze order, and the City reasonably exercised its police powers in
issuing the raze order. As a
consequence, payment of just compensation was not required. The court further concluded that the order's
failure to refer to § 66.05, Stats.,
did not result in a compensable taking of United's property. The court also granted the City summary
judgment on the other grounds cited in its motion. On appeal, United argues that there was a taking of its property
because the City failed to comply with § 66.05, Stats., in issuing the June 9 raze or rehabilitate order.
A compensable taking
occurs when the government places a restriction on property which
"practically or substantially renders the property useless for all
reasonable purposes." Zinn
v. State, 112 Wis.2d 417, 424, 334 N.W.2d 67, 70 (1983) (quoted source
omitted). However, a compensable taking
does not occur when the government exercises its police power and adversely
affects a property interest when the property has been deemed harmful to the
public welfare. See Sippel
v. City of St. Francis, 164 Wis.2d 527, 533, 476 N.W.2d 579, 582 (Ct.
App. 1991).
United's claims in the
circuit court and its arguments on appeal focus on the fact that the June 9
order did not refer to § 66.05, Stats. Rather, the order referenced §§ 14.03 et
seq. of the City's ordinances. United
claims these ordinances are unconstitutional, rendering the June 9 order
unenforceable.
Section 66.05, Stats., addresses the razing of
buildings by a municipality. A
municipality may order razed any building which has become so dilapidated as to
be dangerous or unsafe. See
§ 66.05(1)(a). Although United
complains that the June 9 order was not issued pursuant to § 66.05, United
sought a restraining order under § 66.05(3) in its 1992 action challenging the
June 9 order. There is no showing that
United was deprived of the relief afforded by § 66.05 or that the City
proceeded other than under its police powers.
United's complaint that it was not allowed to appeal the June 9 raze
order to the common council is disingenuous in light of its resort to
§ 66.05 and the relief it received under that statute.
United contends that
during the period from June 9 to October 7, 1992, it was unable to operate the
Inn due to restrictions which practically or substantially rendered the
property useless. However, United does
not flesh out this argument. As the
City points out in its brief, the circuit court found that it was undisputed
that the building was in a dilapidated condition and was "clearly worthy
of a raze order."
United does not direct
us to that portion of the record which supports its claim that use of the
building was restricted by the June 9 order.
Rather, as the City points out, the record indicates that United was
aware of the condition of the building prior to the issuance of the June 9
order. United's president, Edward
Starich, agreed in his deposition that the building was unsafe. This testimony permits an inference that the
building was unusable due to its condition, not as a result of the June 9
order. United's argument that the June
9 raze order prohibited all reasonable use of the property is not sufficiently
developed.
Other than the absence
of a reference to § 66.05, Stats., United
has not persuaded us that the City did not otherwise comply with the provisions
of § 66.05 in issuing the June 9 raze order. We therefore decline to address United's arguments regarding the
constitutionality of §§ 14.03, 14.04 and 14.05 of the City of Brookfield
Municipal Code of Ordinances. See
State v. Waste Management of Wis., Inc., 81 Wis.2d 555, 564, 261
N.W.2d 147, 151 (1977) (this court is not required to address every argument
raised on appeal), cert. denied, 439 U.S. 865 (1978).
In its reply brief,
United addresses for the first time the other grounds relied upon by the
circuit court in granting summary judgment to the City. We normally do not consider arguments raised
for the first time in a reply brief. Swartwout
v. Bilsie, 100 Wis.2d 342, 346 n.2, 302 N.W.2d 508, 512 (Ct. App.
1981). Furthermore, we note that these
arguments are premised upon United's contention that the June 9 order was not
issued in compliance with § 66.05, Stats. We have already addressed this issue.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.