by Gary Taylor
State of Wisconsin ex rel Borst v. City of New Richmond
(Wisconsin Court of Appeals, November 14, 2009)
Service of raze order on husband does not constitute service on wife under Wisconsin statute.
A warranty deed lists both Vernon and Carolyn Borst as owners of a commercial building in the City of New Richmond, Wisconsin. Vernon was personally served with what the parties have construed as a “raze order” from the New Richmond Building Inspector. The order informed Vernon that his building was being condemned and, because the repairs would be excessive and “not a reasonable option,” Vernon was directed to raze the building and clean up the premises within 120 days. Vernon appealed to the New Richmond Board of Appeals and was given two weeks to remove excess items from his property, and sixty days to return to the Board with an “engineered plan” for repairs to bring the property into compliance. When Vernon failed to reappear before the Board, his appeal was denied.
The Borsts argued 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), which requires service “on the owner of record of the building that is subject to the order or on the owner’s agent.” The trial court found in favor of the city, citing 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.”
The Wisconsin Court of Appeals interpreted this subsection differently, so as to only apply in situations where a conveyance is made from the owner of record during condemnation proceedings. Since that was not the case here the city could not rely on the notice filed recorded with the register of deeds. Furthermore, the Court of Appeals found that personal service on Vernon could not be construed as service on Carolyn. Constructive notice will not suffice, and the Wisconsin Supreme Court has previously held that a marital relationship did not make the husband an agent authorized to accept service of summons on behalf of his wife. The Court of Appeals reversed the lower court and remand the matter with directions to vacate the raze order.