Judge dismisses raze order
City of West Bend did not follow state statutes


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 unsafe.

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 wrangling.

“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 court.

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,” Bagley said.

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 worrying.”

Algiers said during Friday’s hearing the city has the option to seek a new raze order.

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.”

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