Town properly used its police powers to build roads and levy special assessments after developer failed obligations

First State Bank v Town of Omro
Wisconsin Court of Appeals, November 11, 2015

Barony subdivision is a 74 lot subdivision that received plat approval in 2004. Only 9 lots were developed over the course of the next 5 years, and in 2009 First State Bank took control of the remaining 65 lots in lieu of foreclosure. At the time of foreclosure, sections of the roads in the subdivision were not paved. In 2013 Omro authorized the roads to be finished and specially assessed all the lots within the subdivision for the cost of completing the roads, which was $219,641.60. The Bank challenged Omro’s authority to levy the special assessments.  The issue on appeal was whether a municipality may use its police powers to build roads and levy special assessments against the land after a developer fails their obligation to build the roads.

The Bank claimed that the assessment was improper because: (1)the development agreement required the developer to pay for the roads; (2) the Ordinance prohibited the road work because 70% of the subdivision was not developed; (3) at the time the special assessments were imposed the subdivision’s roads were privately owned; (4) three lots were not specially benefited because they do not abut Omro’s roads; and (5) the wording of the preliminary and final resolutions did not conform with § 66.0703. The circuit court provided summary judgment to Omro.

The first two arguments asked whether Omro acted outside of their authority granted by the legislature. The Bank argued that the Ordinance says that the money for paving roads “will come directly from the developer, from a special assessment on the development, or another method approved by the Town Board” and that “the development agreement will dictate the method of payment for the paving.” The Bank argues that the developer is the only recourse for payment based on this language in the Ordinance and in the developer agreement. However, the language in these documents does not limit Omro’s power to levy special assessments. Just because the agreed upon payment did not work out does not mean alternatives are not allowed as long as Omro follows the appropriate procedures in state law permitting special assessments.

The Bank argued that because 70% of the subdivision was not developed the special assessment could not be levied.  The court pointed out, however, that there is language in the Ordinance that allows for a different schedule if Town Engineer and the Town Board recommend a different action, which they did.

The last three arguments asked whether Omro failed to follow the requirements of Wis. Stat. §66.0703.  The Bank argued that because the lots were privately owned, the special assessment was not for public improvement.  This argument missed the point that the roads within the subdivision were public property.  State law provides that all roads or streets shown on a final plat are dedicated to the public unless clearly marked as private, which these were not.  Therefore, the assessments were clearly for a public improvement.

Next, the Bank argued that three of the lots do not receive “special benefits” from the project because they do not abut the newly paved roads and should not be specially assessed because of this. The Bank demonstrated a genuine issue of fact. The circuit court erred in granting summary judgment on this issue.

The court affirmed the decision ratifying the special assessment of the lots that benefit from the road project, but reverse the decision that found that the lots that do not abut the roads received special benefits and remanded that issue to the lower court.

No need to make specific finding that building qualified as accessory building when granting special exception

by Hannah Dankbar

Hasanoglu v Town of Mukwonago and Town of Mukwonago Plan Commission
Wisconsin Court of Appeals, October 14, 2015

The Hasanoglus appealed a circuit court decision upholding a decision of the Town of Mukwonago Plan Commission to grant a special exemption to the Hollerns to build an accessory building on their property. The Hasanoglus argue that the Plan Commission does not have jurisdiction to grant this exception and that the exception was arbitrary and unreasonable.

The Hollerns applied for a zoning permit to build a riding arena on their property in rural Mukwonago. Mukwonago determined that the arena would be in “substantial compliance” with the town ordinances, except for the height and square footage of the building. The Plan Commission met and approved the proposal by granting a exception to the zoning ordinance. Their neighbors, the Hasanoglus, filed a certiorari action which sustained the decision.

On appeal, the Hasanoglus argued that according to the Town of Mukwonago Municipal Code §82-25(a)(2)(b)(2) the Town Board could grant this exception, but the Plan Commission does not have jurisdiction to do so in this case. While it is true that this section of the code gives this power to the Town Board, a different part of the code gives the same power to the Plan Commission (Town of Mukwonago Municipal Code §82-25(b)(3)). The court determined that §82-25(b)(3) is the appropriate subsection because there was no finding of a rural accessory building on the Hollerns’ property as is required by §82-25(a)(2)(b)(2).

Next, the Hasanoglus argued that: (1) the Hollerns did not follow the correct procedure to apply for the special exception; (2) that the Plan Commission agenda was not specific enough to give notice of the Hollerns’ request; and (3) the Plan Commission did not conduct a sufficient inquiry into whether the proposed riding arena qualified as an accessory building.

First, the question of whether the Hollerns followed the correct procedure was not raised in circuit court and the section of the municipal code that the Hasanoglus cite is only for property owners seeking exceptions for setbacks. This argument was not considered on appeal.

Second, the Plan Commission’s agenda states, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” The minutes show approval of the request. The Plan Commission is not obligated to be any more specific than that.

Lastly, The Plan Commission is not required to record a specific discussion and determination in its minutes that a building qualifies as an accessory structure.  The Plan Commission placed multiple conditions on the approval of the exception (an example being that there can be no commercial use) which demonstrated that it considered the issue and exercised its judgment.

These arguments failed, so the decision was upheld.

“Providing” fire services means creating and operating a fire district, not making a fire call

by Hannah Dankbar

Town of Hoard v Clark County
Wisconsin Court of Appeals, November 12, 2015

The Town of Hoard is located in Clark County. The County operates a medical center within the town. The issue in this case is whether an ordinance that imposes an annual charge on property owners to cover the cost of fire protection is legal (Town of Hoard Ordinance No. 091113). In 2014 Hoard charged Clark County $3,327.68 for fire protection of the medical center. The County did not pay the charge. Hoard sued the County for not paying and was granted summary judgment. The County appealed.

Under the 2013 ordinance Hoard uses a formula to determine the annual charge for fire protection. The charge is based on the property’s use and square footage to calculate the “domestic user equivalent” (DUE). The medical center was assigned 1.5 DUE units per 1,000 square feet. Hoard divides its annual contribution to the fire district that they share with other communities by the number of DUE units to determine a dollar amount per DUE unit. This dollar amount determines the charge for each property owner.

Hoard argued that Wis. Stat. §60.55(2)(b) allows them to set “a fee on property owners in the Town for the cost of fire protection, as set according to a written schedule that was adopted by the town board.” The pre-1988 version of the statute allowed a town to charge for the cost of “fire calls made to the property”, but the new statute broadened the ability of a town to charge for fire protection to all properties who are protected.

The County argued: (1) the charge to the County under the ordinance is a tax, not a fee, which the County is exempt from under state law, or alternatively (2) if the charge is a fee, the ordinance is not valid under state law because the statute only allows fees for fire protection services that are actually provided. Because the medical center did not receive any services (i.e., no fire calls) they should not have to pay the fee.

There is a distinct difference between a fee and a tax. A tax is to gather revenue for the government. A fee is to cover the expense of providing a service, regulation or supervision. In this case, the charge is to cover the expense of providing fire protection, so it is a fee.

Regarding the second argument, the Court determined that “providing” fire protection services includes joining with other municipalities to create and operate the fire district.  The court determined that the medical center was “provided” fire protection from the Town.

The judgment of the lower court was affirmed.

Wisconsin’s bright line “building permit rule” precludes takings claim

by Hannah Dankbar

McKee Family, LLC and JD McCormick Company, LLC v City of Fitchburg
Wisconsin Court of Appeals, November 5, 2015

The City of Fitchburg rezoned property owned by McKee before McKee was able to apply for a building permit. The rezoning reclassified the property from Planned Development District (PDD), which allows high-density and mixed-use development, to Residential-Medium (R-M) district, which permits lower-density development. McKee argued that McKee had a vested right in the preexisting zoning designation and that the rezoning constituted a taking. The lower court concluded that McKee did not have a vested right in the preexisting zoning classification, and McKee appealed.

In Fitchburg, before a property owner can develop land under a PDD classification they have to go through multiple steps including: submitting a proposed general implementation plan to be approved by the City’s Plan Commission and the Fitchburg Common Council; if approved the property owner submits a specific implementation plan before applying for a building permit.  Fitchburg approved the lots in question in 1994 when the McKee’s predecessor owned the lots. In 2008 JD McCormick, working with McKee, submitted the specific implementation plan while two Fitchburg alders petitioned the City to rezone the property. After public hearings, and before reviewing the specific implementation plan, the Council rezoned the property. THe rezoning took effect before any commission review of the specific implementation plan.  The Council concluded that the rezoning was “in the best interest of maintaining a stable surrounding neighborhood to reduce the lots.”  The primary issue was whether McKee had obtained a vested right in the preexisting zoning designation, despite not being eligible for and not applying for a building permit.

The court concluded that there is no vested right based on Wisconsin’s bright-line “building permit rule.”  Wisconsin focuses on building permits and applications for permits to define the point at which a property owner develops a vested interest in the property. Neither McCormick nor McKee ever applied for or received a building permit. McKee argued that Wis. Stat. § 62.23(7) creates private contractual rights for developers, but the Court did not interpret the statute that way. There is nothing in the statute that obligates a municipality to maintain a specified zoning designation. To the contrary the statute authorizes municipalities to amend or repeal zoning designations as long as they follow specific procedures (§62.23(7)(d)(2) and (3)).  McKee argued that they made multiple investments in the property without applying for the permit and these investments demonstrate a vested right and a contract with the City. The court rejected this argument in a prior Wisconsin Supreme Court case, and likewise rejected it here.  The trial court determination was upheld.

Wisconsin intergovernmental agreement statutes allow for “major” boundary changes

by Hannah Dankbar

City of Kaukauna v. Village of Harrison
Wisconsin Court of Appeals, August 26, 2015

In 2013 the Village of Harrison was created within the Town of Harrison. The two communities created an intergovernmental cooperation agreement to share services and provide more land to the Village. The Cities of Kaukauna and Menasha, the Village of Sherwood along with individual property owners (referred to as the Challengers) argue that the agreement involved a “major” boundary change that exceeds the scope allowed by statute, and that the Town and Village did not strictly comply with statutory notice requirements.

In February 2013 voters in the Town of Harrison approved incorporating a 4.6-square-mile area as the Village of Harrison.  The Town and the Village published a notice about a hearing to discuss an Intergovernmental Cooperation Agreement concerning the provision of municipal services and the apportionment of costs, assets and liabilities, and the boundary line that would form the village limits. In addition to the published notice there was also a notice sent via certified mail to 1910 property owners. As a result of the boundary change 1,736 parcels that had been in the Town were assigned to the Village, which had an initial population of 9,597. This left the Town with 1,316 residents in “growth areas” with intermunicipal agreements with the cities of Appleton and Menasha. Prior to creation of the Village the Town of Harrison had about 10,700 residents.

The Challengers argue that WIS. STAT. § 66.0301 allows only “modest boundary changes incidental to” the sharing of services between governments and requires a prehearing notice to property owners of the effects of the intergovernmental agreement on the boundary lines. The Challengers conceded that the statute is silent on the scope of the boundary changes permitted via intergovernmental agreements, but they argue that the statute should be read to allow only “modest” boundary changes necessary to accomplish the statute’s “primary goal of sharing services between municipalities.” The Court of Appeals, however, believed that this would require it to read beyond the plain language of a statute, which the court determined it would not do.

The Challengers argue that allowing municipalities to achieve major boundary changes via intergovernmental agreements would lead to an “absurd” result and would take meaning away from other statutes related to intergovernmental agreements, and the agency and mandatory public referendum approval process required for other jurisdictional alterations. The court disagreed.  Just because there is a legislative process that the Challengers do not like does not mean it is “absurd”. Statutes can provide multiple methods for altering municipal boundaries.

The Challengers argue that even property owners who are not near the boundary are still affected by it and should be given notice. Wisconsin law provides for publication of “a class 1 notice” in a newspaper that is available to everybody in the area. The court found this to be sufficient notice to those property owners.

Both notices (direct mailed notice and newspaper notice) provided by Harrison made reference to “boundary line adjustments between the Town of Harrison and the Village of Harrison” as being part of the intergovernmental cooperation agreement. This complied with the minimal notice requirement of WIS. STAT. § 66.0301(6)(c)1 by informing property owners that the approval of the agreement would relocate many of them. The language of the statute does not specify what information is required to be in the notice.

The Court of Appeals found that Harrison fully complied with all statutory notice requirements.

Scare gun ordinance validated; it is not zoning

by Hannah Dankbar

Town of Trempealeau v. Wendell P. Klein
Wisconsin Court of Appeals, August 18, 2015

Klein owns and operates a farm in Trempealeau, WI. He uses scare guns (a propane cannon) to prevent blackbirds from damaging his crops. In 2013 Trempealeau passed an ordinance requiring anybody wanting to use a scare gun within town limits to obtain a permit. The ordinance places three conditions on permits regarding times of day and months of the year that the guns can be used, distance from other residence of where the gun can be used, and that all guns must be pointed at least forty-five degrees away from neighboring property lines. The town board can exempt a permittee from these conditions after they receive a written explanation of why the conditions plan an undue hardship on the permittee. Klein applied for and received a permit.

On August 10, 2013 Klein was cited for operating a scare gun at less than forty-five degrees from the neighboring property line. Klein pled not guilty and moved to dismiss. He argued that the ordinance was invalid for a number of reasons.

Vested Right.  Klein argued that he had a vested right to use scare guns because he, and his father before him, had used scare guns as part of their farming operations before zoning was put into place.  The Court of Appeals noted that the scare gun ordinance did not meet the test set forth in previous court cases to qualify the ordinance as a zoning ordinance.

Taking. Klein argues that the ordinance acts as a taking of his property because his crops “will literally be taken from him”. He argues the taking is a regulatory taking which is “a restriction that deprives an owner ‘of all, or substantially all, of the beneficial use of his property.’” The Court disagreed.  The ordinance did not deprive Kline of all or substantially all of the beneficial use of his property.  Because Klein retains the ability to practice agriculture on his land, this argument fails.  Moreover, the ordinance does not prohibit the use of scare guns; it merely regulates their use.  There was no evidence that using the scare guns in a manner consistent with the ordinance would still result in a devastating loss of crops.

Trempealeau County’s comprehensive zoning ordinance.  Trempealeau County’s comprehensive zoning ordinance § 4.03 states, ““General agricultural practices shall be allowed in all agricultural districts without issuance of a land use permit[.]” Klein argued that this section unambiguously prohibits the Town from requiring him to obtain a permit; however, the scare gun permit is not a land use permit because it does not license a “use.” Trempealeau County’s comprehensive zoning ordinance §4.03(1)(c) lists “barnyards, feedlots, and uses involving agricultural structures” as examples of “general agricultural practices.” The description of structures and locations reinforces the conclusion that the use of scare guns does not constitute a general agricultural practice.

Right to Farm.  Klein argued that the statute is preempted by the state’s Right to Farm Law. This law protects agriculture enterprises from nuisance claims. Klein and the Town agreed that the Right to Farm Law protects both agricultural uses and practices. They also agree that the statute sets forth a heightened standard for determining that an agricultural use or practice is a nuisance. Nothing in the statute, however, prevents local governments from regulating agricultural uses and practices without a finding that those uses or practices meet the heightened nuisance standard.

The district court’s judgment in favor of Trempealeau was affirmed.

 

Notice provision for city inspection preempted by state statute

by Andrea Vaage

Olson et al. v. City of La Crosse
Wisconsin Court of Appeals, July 16, 2015

Landlords in La Crosse, Wisconsin challenged a City ordinance that would have required them to participate in an inspection and registration program. The circuit court rejected the challenge. The landlords appeal, arguing the part of the ordinance requiring the landlords to notify tenants of a city inspection was preempted by state statute.

The LaCrosse notice provision in question states:

“(3) The owner [of a rental property] shall arrange for access to the dwelling or dwelling unit and all portions of the property affected by the rental of the dwelling or dwelling unit and shall notify all tenants of the [City] inspection in accordance with Wisconsin law and the lease agreement between the owner and the tenant. Failure to provide access to the property and dwelling or dwelling unit on the agreed inspection date will subject the owner to the fees specified in Section 8.09 of this Code and denial of the registration certificate.

(4)  Except as otherwise provided by law …, inspections shall not be conducted:

….(c)  Without prior notice to the tenant by the owner as required by state law or the lease agreement.”

 

The relevant Wisconsin statute provides: “No city, village, town, or county may enact an ordinance that requires a landlord to communicate to tenants any information that is not required to be communicated to tenants under federal or state law.”

Despite the Wisconsin statute cited above, the City identified two state statues and an administrative code provision that they argued worked together to require a landlord to notify tenants of a city inspection. The Court found that the first of the state statutes, and the administrative code, applied to landlord inspections, not city inspections, and were inapplicable to the situation.

The other statute, Wis. Stat. 704.07(2), requires landlords to “comply with any local housing code.” The City argued that the notice provision was part of the local housing code, and therefore proper under Wis. Stat. 704.07(2). The Court interpreted these statutes in a manner that harmonized them. “We give each its full force and effect by interpreting them as requiring landlords to “comply with any local housing code” while also prohibiting local governments from including in local housing codes any provision that “requires a landlord to communicate to tenants any information that is not required to be communicated to tenants” under any other federal or state law.” This interpretation, the court stated, would not substantially change the powers of the municipality. The City could still conduct inspections, but they would be responsible for notifying tenants of city inspections, not the landlords.

The Court reversed the circuit court decision to uphold the notice provision, while upholding the rest of the ordinance.

 

Wisconsin statute regulating parking signs preempts local ordinance limiting “off premises” signs

by Andrea Vaage

City of Eagle River v. Slusarczyk
Wisconsin Court of Appeals, July 7, 2015

Mark Slusarczyk, owner of Traveler’s Inn, posted a sign in his parking lot which forbid customers of the neighboring Synergy Salon and Spa from using the lot. The sign read:

PRIVATE PROPERTY NO TRESPASSING!
TRAVELERS INN GUESTS
PARKING ONLY
DO NOT BLOCK DRIVEWAY ANY TIME
NO! SYNERGY OR THEIR RUDE GUESTS
PROHIBITED THANK YOU

Slusarczyk was cited for violating section §106-683 of the Eagle River Zoning Ordinance, which allows off-premises signs after procuring a conditional use permit. The City contended that Slusarczyk’s sign promoted another business, and therefore was an off-premises sign, defined under the Eagle River Ordinance as “a sign which directs attention to a business, product, service, or entertainment not conducted, sold or offered upon the property where such sign is located.” A trial was held on November 5, 2014 where the trial court determined that the sign directed attention to the Synergy Salon and Spa and therefore constituted and off-premise sign. Slusarczyk appealed to the Wisconsin Court of Appeals.

The primary question before the Court was whether the City’s ordinance conflicts with a preemptive state statute. Preemption occurs when a local ordinance comes into conflict with a state statute purporting to regulate the same matter. Both the legal interpretation of the town’s ordinance and the state statute were reviewed de novo.

Wisconsin state law provides for traffic regulations, including a section that authorizes signs permitting or prohibiting parking.  Wis. Stat. § 346.55(4) provides that “Owners or lessees of public or private property may permit parking by certain persons and limit, restrict or prohibit parking as to other persons if the owner or lessee posts a sign on the property indicating for whom parking is permitted, limited, restricted or prohibited.”

Slusarczyk contended his sign clearly fell within the scope of the state statute.  The City argued, on the other hand, that “Wis. Stat. § 346.55(4) permits the sort of sign Mark Slusarczyk put up in this matter[, and] City of Eagle River Ordinance § 106-683 also permits the sort of sign Mark Slusarczyk put up in this matter, as long as a conditional use permit is first granted for the sign.”  Citing the 2008 Wisconsin Supreme Court case of Town of Rhine v. Bizzell, the Court found, that “[e]ven though conditional uses may be authorized pursuant to the ordinance, that does not render them uses as of right.” Because a preemptive state statute grants Slusarczyk the right to indicate for whom parking is restricted or prohibited on his property, the City of Eagle River cannot restrict that right by requiring Slusarczyk to first obtain a conditional grant. The Court found that the City of Eagle River ordinance conflicted with the state statute allowing for signs which specifically prohibited certain persons and was therefore preempted.  The City cannot restrict this right by requiring a CUP. The judgment of the trial court was reversed.

Short-term rentals not allowed in R-1 residential district in Wisconsin county

by Andrea Vaage

Vilas County v. Accola
Wisconsin Court of Appeals, May 12, 2015

The Accolas own a home on Rosalind Lake in Vilas County, Wisconsin, which is not their primary residence. The property is zoned R-1 Residential, which allows the following permitted uses:

  • Single-family detached dwelling units, including individual mobile homes, which meet the yard requirements of the district.
  • One non-rental guesthouse, which may be occupied on a temporary basis.
  • Parks, playgrounds, golf courses and other recreation facilities.
  • Home occupations.
  • Essential services.
  • Hobby farms.

The Vilas County zoning ordinance also includes an R/L Residential Lodging district. The purpose of the Residential/Lodging District, as stated in the ordinance, is to “provide for areas with primarily low-density residential use, but with some mixing of low-density Transient Lodging.” Transient Lodging is defined as “a commercial lodging establishment, which allows rental of sleeping quarters or dwelling units for periods of less than one month.” The R/L District lists the following permitted uses:

  • All uses permitted in the R-1 District.
  • Bed and breakfast establishments.
  • Resort establishments with no contiguous multiple-family dwelling units.
  • Rental of residential dwelling unit.

Shortly after purchasing the property the Accolas began advertising the property for rent on the internet for stays as short as two days. The County advised the couple that single-family residences in the R-1 district could not be rented for less than one month. In response, the Accolas established a corporation called Better Way to Live. The couple had people staying at the property “donate” to the corporation for cleaning, utility, and other expenses, and allegedly gave the remainder of the donation to charity. The County determined that donating posed no functional difference from renting the property. The circuit court enjoined the Accolas from renting the Rosalind Lake property for durations of less than thirty days, and the Accolas appealed.

The property is located in the R-1 residential district, which allows single family detached dwelling units, but makes no mention of whether renting the unit is allowed. The County asserted that rentals under one month were prohibited in the R-1 district because they are specifically permitted in the R/L district. Thus, if short-term rental was allowed in the R-1 district, then the additional language in the RL district ordinance would be meaningless.

The Court of Appeals agreed with the County.  When the R-1 district regulations are read in context with the R/L regulations, the only reasonable conclusion is that the phrase “rental of residential dwelling unit” in R/L refers to rentals of residential dwelling units for periods of less than one month.  The zoning ordinance unambiguously permits in the R/L district both: (1) the rental of single-family detached dwelling units for periods of less than one month; and (2) all uses permitted in the R-1 district, which includes single-family detached dwelling units. “If the Accolas were correct that the rental of single-family detached dwelling units for periods of less than one month was a permitted use in the R-1 district, then the section of the R/L district regulations permitting the rental of single-family detached dwelling units for periods of less than one month would be superfluous because all uses permitted in the R-1 district are already permitted in the RL district.”

The Court affirmed decision granting summary judgement to the County.

Shared driveway resulting from DOT condemnation may be undesirable, but does not constitute a taking

by Hannah Dankbar

Bailey v Wisconsin DOT
Wisconsin Court of Appeals, April 23, 2015

Bradley and Caroline Bailey appealed the circuit court’s dismissal of their takings claim against the Wisconsin DOT. The Baileys claimed that the DOT took part of their land that resulted in a change in access to their property and left them with an “uneconomic remnant” which, according to Wis. Stat. 32.05(3m) means that the “property remaining is of such size, shape or condition as to be of little value or of substantially impaired economic viability.”

The DOT condemned two parcels of the Baileys’ property as part of a highway construction project.  As part of this project the DOT moved the Baileys’ driveway and created a new access point from the highway. The Baileys claimed that the DOT’s actions left them with an “uneconomic remnant,” but the circuit court dismissed the complaint.

The Baileys first argued that the circuit court erred because the DOT failed to make a prima facie case that the “Baileys’ property had reasonable access after condemnation.”  The DOT responded that the question of reasonable access is separate from, and plays no part in a determination whether an uneconomic remnant exists under the statute.

The Court of Appeals dismissed the Baileys’ argument over any supposed stand-alone “reasonable access” issue. Instead it focused on whether the change in access left the Baileys with an uneconomic remnant. The Baileys submitted four affidavits in support of this claim: one by the Baileys’ attorney, two by individuals the Baileys listed as experts, and one by Caroline Bailey. The circuit court excluded everything in the attorney’s and experts’ affidavits based on lack of foundation and other admissibility factors.  Caroline Bailey’s affidavit was the exception. She stated that they now shared a driveway with a neighbor whom they find difficult and threatening, and with whom they believe they will be unable to agree on driveway maintenance.  The Court of Appeals found that this only demonstrated that the Baileys’ situation is undesirable; not that the remaining property is “of little value or of substantially impaired economic viability.”

Because of these reasons the Court of Appeals affirmed the circuit court’s dismissal.

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