dismisses raze order
of West Bend did not follow state statutes
By JOE VANDELAARSCHOT - Daily News
May 11, 2015
WEST BEND - A
judge has dismissed legal efforts by West Bend
officials to have the former Bermico building, 2100
Northwestern Ave., torn down.
For nearly four years, the city has raised concerns
with the building’s past and present owners about
its structural condition and safety. The city has
described the building as dilapidated, dangerous and
Washington County Circuit Court Judge James
Muehlbauer said during Friday’s hearing he had
concerns over whether the city followed state
statutes in its pursuit of the raze order.
“Even if you prove the building should be torn down,
I can’t issue the order,” Muehlbauer said.
“Technically, you’ve not followed the statutes.”
He said statutes clearly state when a raze order is
issued on property and ownership changes after the
order has been issued, the raze order either has to
be legally attached to the property’s deed or there
must be legal proof a copy of the raze order was
served on the new owner.
“Mr. Bagley said he was never formally served,
although he admits he was told of the order before
he bought the property and received a letter from
the city informing him of it. But there’s no proof
he was formally served and nothing was recorded on
the deed,” Muehlbauer said. “Because of that, I
don’t see anything that would allow the court to
issue the order the city seeks.”
Timothy Algiers, the city’s attorney in the case,
argued it was “clear that Mr. Bagley was aware of
the raze order and we were operating under the
belief that he had been served.
“The actions of the defendant would constitute a
waiver of the privilege,” Algiers said.
But Bagley’s attorney Mark Brunner disagreed.
“The statutes are very clear. If you don’t record
it, it’s not noted,” Brunner said.
Muehlbauer said the case is
unique and this might not be the end of legal
“This isn’t going to go away and
I’m urging the sides to try to work together to
reach some kind of agreement,” Muehlbauer said. “I
know the city has shown how they’ve tried to work
with Mr. Bagley and I appreciate that, but the
statute has not been followed.”
As part of the legal fight,
Bagley had filed a counterclaim against the city,
but he told the court he was withdrawing that action
after Muehlbauer announced his ruling.
“I just want to work with the
city and get my building completed,” Bagley told the
Bagley testified Monday he
believed 80 percent of his work on the building was
finished. After the hearing, he said he didn’t want
the dispute to go to court because it would cost
everyone a great deal of money.
“I know it’s cost the taxpayers
a lot and that’s something I never wanted to see,”
Brunner said after the hearing
that he and Algiers have agreed to talk next week
about the next step.
“We’re going to explore all our
options,” Algiers said after the hearing. “We
appreciate that the judge knows how much the city
has tried to work with Mr. Bagley. There are still
some broken windows and questions of safety. We want
to make sure the building is secure so no one else
can enter and get hurt. We want to be able to stop
Algiers said during Friday’s
hearing the city has the option to seek a new raze
Bagley testified earlier that
the Department of Natural Resources has given his
project a clean bill of health and the state has
renewed his building plan until August 2016.
“All environmental questions
have been taken care of,” Bagley said. “I even had
all of the asbestos removed before I took ownership
in December 2012.”
<<EARLIER: Court hears arguments over Bermico raze