COURT OF
APPEALS DECISION DATED AND
RELEASED March
14, 1996 |
NOTICE |
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. 95-2720-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
CITY
OF MARSHFIELD,
Plaintiff-Respondent,
v.
FRANK
A. VIETSCHEGGER,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Wood County: EDWARD F. ZAPPEN, JR., Judge.
Affirmed.
SUNDBY,
J. Defendant presents a single issue: Does the record support a finding that he
maintained "blighted premises" contrary to City of Marshfield
Ordinance No. 10.05(13)? We[1]
conclude that it does and affirm the judgment imposing a forfeiture.
Section
10.05(13)(a) of the Marshfield Municipal Code provides that the following are
public nuisances:
Premises existing
within the City which are blighted because of faulty design or construction,
failure to maintain them in a proper state of repair, improper management, or
due to the accumulation thereon of junk or other unsightly debris, structurally
unsound fences, and other items which depreciate property values and jeopardize
or are detrimental to the health, safety, morals or welfare of the people of
the City.
On
April 14, 1994, the City Building Services Supervisor, Roland Donath, inspected
defendant's premises and issued him an order to "[r]emove all old
vehicles, junk and miscellaneous debris from the premises" by June 15,
1994. Defendant did not comply and was
summoned to appear before the circuit court on August 29, 1994. After a hearing, the court found defendant
guilty and entered a judgment August 15, 1995, requiring defendant to pay $5.00
a day until the premises were cleaned up or until he erected a fence around the
premises.
Defendant
concedes that the testimony of Donath and the photo exhibits support the trial
court's finding that his premises are a junkyard. The trial court stated:
"You can call it whatever you want. It's a junk yard ...."
The photographs, taken August 10, 1995, show dilapidated vehicles, an
old air compressor, wood pallets, storage barrels, old tanks, stacks of old
lumber, miscellaneous metal parts, and miscellaneous debris.
Defendant
argues that this evidence is insufficient to show that the condition of his
premises (1) depreciates the property values of surrounding property and (2)
jeopardizes or is detrimental to the health, safety, morals or welfare of the
people of the City.
Defendant
contends that the City had to prove by "direct testimony" that
defendant's property depreciated the value of other property. We read defendant to argue that expert testimony
was required to show depreciation in the property values of other
property. He cites the rule that a
trial court may take judicial notice of facts of "verifiable
certainty." Fringer v.
Venema, 26 Wis.2d 366, 372-73, 132 N.W.2d 565, 569-70 (1965). We agree with defendant's statement of the
general rule, but reject its application here.
The evidentiary facts include that defendant has accumulated on his
premises junk and other unsightly debris; that an adjacent neighbor is a
daycare center; that the property across the street is zoned residential; and
that defendant's property is not zoned for a junkyard or auto salvage yard.
In
view of these facts, the trial court's finding that defendant's use of his
premises depreciates the value of adjacent property is not clearly
erroneous. See § 805.17(2), Stats.
Nor is the court's finding that defendant's property is unsightly
clearly erroneous. We conclude as a
matter of law that unsightly property which depreciates property values is
detrimental to the welfare of the people of the City.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.