Chapter 66

66.0413(2)(c) (c) Failure to remedy; court order to remedy or raze.

66.0413(2)(c)1. 1. If an owner fails to remedy or improve the defect in accordance with the written notice under par. (b) within the 30-day period specified in the written notice, the building inspector or other designated officer shall apply to the circuit court of the county in which the building is located for an order determining that the building constitutes a public nuisance. As a part of the application for the order from the circuit court the building inspector or other designated officer shall file a verified petition which recites the giving of written notice, the defect in the building, the owner’s failure to comply with the notice and other pertinent facts. A copy of the petition shall be served upon the owner of record or the owner’s agent if an agent is in charge of the building and upon the holder of any encumbrance of record under sub. (1) (d). The owner shall reply to the petition within 20 days following service upon the owner. Upon application by the building inspector or other designated officer the circuit court shall set promptly the petition for hearing. Testimony shall be taken by the circuit court with respect to the allegations of the petition and denials contained in the verified answer. If the circuit court after hearing the evidence on the petition and answer determines that the building constitutes a public nuisance, the court shall issue promptly an order directing the owner of the building to remedy the defect and to make such repairs and alterations as may be required. The court shall set a reasonable period of time in which the defect shall be remedied and the repairs or alterations completed. A copy of the order shall be served upon the owner as provided in sub. (1) (d). The order of the circuit court shall state in the alternative that if the order of the court is not complied with within the time fixed by the court, the court will appoint a receiver or authorize the building inspector or other designated officer to proceed to raze the building under par. (d).

66.0413(2)(c)2. 2. In an action under this subsection, the circuit court before which the action is commenced shall exercise jurisdiction in rem or quasi in rem over the property that is the subject of the action. The owner of record of the property, if known, and all other persons of record holding or claiming any interest in the property shall be made parties defendant, and service of process may be made upon them.

66.0413(2)(c)3. 3. It is not a defense to an action under this subsection that the owner of record of the property is a different person or entity than the owner of record of the property on or after the date the action was commenced if a lis pendens was filed before the change of ownership.

66.0413(2)(d) (d) Failure to comply with court order. If the order of the circuit court under par. (c) is not complied with within the time fixed by the court under par. (c), the court shall authorize the building inspector or other designated officer to raze the building or shall appoint a disinterested person to act as receiver of the property to do either of the following within a reasonable period of time set by the court:

66.0413(2)(d)1. 1. Remedy the defect and make any repairs and alterations necessary to meet the standards required by the building code or any health order. A receiver appointed under this subdivision, with the approval of the circuit court, may borrow money against and mortgage the property held in receivership as security in any amount necessary to remedy the defect and make the repairs and alterations. For the expenses incurred to remedy the defect and make the repairs and alterations necessary under this subdivision, the receiver has a lien upon the property. At the request of and with the approval of the owner, the receiver may sell the property at a price equal to at least the appraised value of the property plus the cost of any repairs made under this subdivision. The selling owner is liable for those costs.

66.0413(2)(d)2. 2. Secure and sell the building to a buyer who demonstrates to the circuit court an ability and intent to rehabilitate the building and to have the building reoccupied in a legal manner.

66.0413(2)(e) (e) Receiver; order to raze.

66.0413(2)(e)1. 1. A receiver appointed under par. (d) shall collect all rents and profits accruing from the property held in receivership and pay all costs of management, including all general and special real estate taxes or assessments and interest payments on first mortgages on the property. A receiver under par. (d) shall apply moneys received from the sale of property held in receivership to pay all debts due on the property in the order set by law and shall pay any balance to the selling owner if the circuit court approves.

66.0413(2)(e)2. 2. The circuit court shall set the fees and bond of a receiver appointed under par. (d) and may discharge the receiver as the court considers appropriate.

66.0413(2)(e)3. 3. Nothing in this subsection relieves the owner of property for which a receiver has been appointed under par. (d) from any civil or criminal responsibility or liability except that the receiver has civil and criminal responsibility and liability for all matters and acts directly under the receiver’s authority or performed at his or her discretion.

66.0413(2)(e)4. 4. If a defect is not remedied and repairs and alterations are not made within the time limit set by the circuit court under par. (d), the court shall order that the building inspector or other designated officer proceed to raze the building.

66.0413(2)(e)5. 5. All costs and disbursements to raze a building under this subsection shall be as provided under sub. (1) (f).

66.0413(3) (3) Razing historic buildings.

66.0413(3)(a) (a) In this subsection:

66.0413(3)(a)1. 1. “Cost of repairs” includes the estimated cost of repairs that are necessary to comply with applicable building codes, or other ordinances or regulations, governing the repair or renovation of a historic building.

66.0413(3)(a)1m. 1m. “Historic building” means any building or object listed on, or any building or object within and contributing to a historic district listed on, the national register of historic places in Wisconsin, the state register of historic places or a list of historic places maintained by a municipality.

66.0413(3)(a)2. 2. “Municipality” means a city, village, county or town.

66.0413(3)(b) (b) The state historical society shall notify a municipality of any historic building located in the municipality. If a historic district lies within a municipality, the historical society shall furnish to the municipality a map delineating the boundaries of the district.

66.0413(3)(c) (c) If an order is issued under this section to raze and remove a historic building and restore the site to a dust-free and erosion-free condition, an application is made for a permit to raze and remove a historic building and restore the site to a dust-free and erosion-free condition or a municipality intends to raze and remove a municipally owned historic building and restore the site to a dust-free and erosion-free condition, the municipality in which the historic building is located shall notify the state historical society of the order, application or intent. No historic building may be razed and removed nor the site restored to a dust-free and erosion-free condition for 30 days after the notice is given, unless a shorter period is authorized by the state historical society. If the state historical society authorizes a shorter period, however, such a period shall be subject to any applicable local ordinance. During the 30-day period, the state historical society shall have access to the historic building to create or preserve a historic record. If the state historical society completes its creation or preservation of a historic record, or decides not to create or preserve a historic record, before the end of the 30-day period, the society may waive its right to access the building and may authorize the person who intends to raze and remove the building, and restore the site to a dust-free and erosion-free condition, to proceed before the end of such period, except that such a person shall be subject to any applicable local ordinance.

66.0413(3)(d) (d) If a municipal governing body, inspector of buildings or designated officer determines that the cost of repairs to a historic building would be less than 85 percent of the assessed value of the building divided by the ratio of the assessed value to the recommended value as last published by the department of revenue for the municipality within which the historic building is located, the repairs are presumed reasonable.

66.0413(4) (4) First class cities; other provisions.

66.0413(4)(a) (a) First class cities may adopt by ordinance alternate or additional provisions governing the placarding, closing, razing and removal of a building and the restoration of the site to a dust-free and erosion-free condition.

66.0413(4)(b) (b) This subsection shall be liberally construed to provide 1st class cities with the largest possible power and leeway of action.

66.0413(5) (5) Razing certain insured dwellings.

66.0413(5)(a) (a) Definitions. In this subsection:

66.0413(5)(a)1. 1. “Cost of repairs” includes the estimated cost of repairs that are necessary to comply with applicable building codes, or other ordinances or regulations, governing the repair or renovation of a dwelling.

66.0413(5)(a)2. 2. “Covered damage” means damage that is covered by an insurance policy.

66.0413(5)(a)3. 3. “Insured dwelling” means real property that is covered under an insurance policy and that is owned, occupied, and used primarily as a dwelling by the insured.

66.0413(5)(b) (b) Insurer certification.

66.0413(5)(b)1. 1. No later than 14 days after real property has incurred damage, an insurer may provide a written certification through 1st class mail or electronic communication to a governing body, building inspector, or other designated officer of a municipality stating all of the following:

66.0413(5)(b)1.a. a. That the insurer reasonably believes the real property may qualify as an insured dwelling.

66.0413(5)(b)1.b. b. That the property owner or an insured has filed a claim for covered damage with the insurer or the insurer has reason to believe the property owner or an insured will file a claim for covered damage with the insurer.

66.0413(5)(b)1.c. c. That the insurer reasonably believes the claim may qualify as covered damage.

66.0413(5)(b)1.d. d. The date of damage to the insured dwelling, the insurance policy limits of the insured dwelling, the insurer’s designated representative for the filed or anticipated claim, and the designated representative’s mailing address, electronic mail address, and phone number.

66.0413(5)(b)2. 2. A certification under this paragraph does not waive or limit any rights of the insurer under an insurance policy.

66.0413(5)(b)3. 3. At any point prior to submitting a certification under subd. 1., an insurer may notify a governing body, building inspector, or other designated officer of a municipality that the insurer has determined the insured dwelling to be wholly destroyed. If at any point after submitting a certification under subd. 1. the insurer determines that the insured dwelling is wholly destroyed, the insurer shall notify the governing body, building inspector, or other designated officer of that determination.

66.0413(5)(c) (c) Municipal assessment. A governing body, building inspector, or other designated officer of a municipality may not issue a raze order under sub. (1) (b) for an insured dwelling for which an insurer has provided a certification under par. (b) unless the governing body, building inspector, or other designated officer does all of the following:

66.0413(5)(c)1. 1. Provides notice of intent to issue a raze order to the owner of record of the insured dwelling, the holder of any encumbrance on the insured dwelling, and the insurer of the insured dwelling. The notice shall include a statement that materials may be submitted to the governing body, building inspector, or other designated officer under subd. 2. Notice under this subdivision shall be served in the manner provided under sub. (1) (d).

66.0413(5)(c)2. 2. Accepts and considers materials that are submitted by any person entitled to notice under subd. 1., that assist in establishing the extent of the damage or the reasonable cost of repairs to the insured dwelling, and that are received within 30 days after provision of the notice under subd. 1. Materials that may be accepted and considered under this subdivision are limited to damage estimates, evaluations of the cost of repairs, and the results of inspections of the property. When considering the materials submitted under this subdivision, the governing body, building inspector, or other designated officer shall consider the qualifications, expertise, and experience of the person that submitted the materials.

66.0413(5)(c)3. 3. Conducts an on-site inspection of the insured dwelling to assess the extent of the damage.

66.0413(5)(c)4. 4. Determines the estimated cost of repairs for the insured dwelling.

66.0413(5)(c)5. 5. Determines that repair of the insured dwelling is not reasonable.

66.0413(5)(d) (d) Cost of repair. A municipal governing body, building inspector, or other designated officer of a municipality shall base its determination of the estimated cost of repairs for the insured dwelling under par. (c) 4. on the materials accepted under par. (c) 2. and similar materials produced by the municipal governing body, building inspector, or designated officer.

66.0413(5)(e) (e) Reasonableness of repair. If a municipal governing body, building inspector, or other designated officer of a municipality determines that the estimated cost of repairs of an insured dwelling does not exceed 70 percent of the insurance policy limits of the insured dwelling, the repairs are presumed reasonable.

66.0413(5)(f) (f) Repair orders. Nothing in this subsection shall preclude the governing body, building inspector, or other designated officer of a municipality from ordering the owner of an insured dwelling to make the building safe and sanitary under sub. (1) (b).

66.0413(5)(g) (g) Application. This subsection does not apply to any of the following:

66.0413(5)(g)1. 1. A dwelling that the governing body, building inspector, or other designated officer of a municipality has determined to be in imminent danger of structural collapse and for which the property owner has failed to appropriately secure and limit access.

66.0413(5)(g)2. 2. An insured dwelling that is the subject of a notification provided to the governing body, building inspector, or other designated officer of a municipality by an insurer pursuant to par. (b) 3.

66.0413 History History: Sup. Ct. Order, 67 Wis. 2d 750; 1977 c. 187; 1979 c. 323; 1981 c. 341; 1983 a. 108, 192, 219; 1983 a. 275 s. 15 (2); 1987 a. 395; 1989 a. 347; 1991 a. 39, 316; 1993 a. 213, 246, 267, 382, 491; 1995 a. 225; 1997 a. 187; 1999 a. 67; 1999 a. 150 ss. 98 to 108, 134 to 149; Stats. 1999 s. 66.0413; 2001 a. 103; 2005 a. 442; 2013 a. 87; 2021 a. 107.

66.0413 Annotation The 30-day time limitation within which an owner may apply to the circuit court for an order restraining a municipality from razing a building applicable to s. 66.05 (3) [now sub. (1) (h)] requires an application to the court within the 30-day period. Service of the application or resultant order need not be made within that period, although a hearing on the merits of the controversy must be held within 20 days. Berkoff v. Department of Building Inspection & Safety Engineering, 47 Wis. 2d 215, 177 N.W.2d 142 (1970).

66.0413 Annotation The owner has no option to repair buildings ordered razed when the cost of repair would be unreasonable, i.e., exceeding 50 percent of value. City of Appleton v. Brunschweiler, 52 Wis. 2d 303, 190 N.W.2d 545 (1971).

66.0413 Annotation The statute only creates a presumption that repairs in excess of 50 percent are unreasonable; the property owner has the burden to show that the presumption is unreasonable in the particular case. Posnanski v. City of West Allis, 61 Wis. 2d 461, 213 N.W.2d 51 (1973).

66.0413 Annotation The trial court exceeded its authority in modifying a building inspector’s order to raze a building by instead ordering repairs necessary to make the building fit for human habitation. Modification of an inspector’s order must be made in light of the purpose of protecting the public from unsafe buildings. Donley v. Boettcher, 79 Wis. 2d 393, 255 N.W.2d 574 (1977).

66.0413 Annotation Persons affected by a raze order have an exclusive remedy under s. 66.05 (3) [now sub. (1) (h)]. Gehr v. City of Sheboygan, 81 Wis. 2d 117, 260 N.W.2d 30 (1977).

66.0413 Annotation A city was properly held in contempt for razing a building protected by a foreclosure judgment. Mohr v. City of Milwaukee, 106 Wis. 2d 80, 315 N.W.2d 504 (1982).

66.0413 Annotation A land contract vendor is not an owner of real estate under this section. City of Milwaukee v. Greenberg, 163 Wis. 2d 28, 471 N.W.2d 33 (1991).

66.0413 Annotation The 20-day time limit under sub. (1) (h) is directory rather than mandatory. The trial court shall attempt to hold the hearing within 20 days of the application. If a timely request for judicial substitution is filed that increases the time requirements, the court shall schedule the hearing at the earliest convenient time. Matlin v. City of Sheboygan, 2001 WI App 179, 247 Wis. 2d 270, 634 N.W.2d 115, 00-2389.

66.0413 Annotation Sub. (1) (h) does not bar a property owner from: 1) asserting claims for torts committed in the carrying out of the raze order that are not premised on the wrongfulness or unreasonableness of the order; 2) challenging the reasonableness of a lien imposed under sub. (1) (f) if one has been imposed; and 3) asserting a claim that salvage and valuable materials have been removed from the real estate for the benefit of the contractor without giving the owner a credit against the charges for the costs of razing and removing under sub. (1) (j). Smith v. Williams, 2001 WI App 285, 249 Wis. 2d 419, 638 N.W.2d 635, 00-3399.

66.0413 Annotation A constructive total loss occurs following the issuance of a raze order. However, there is no requirement on the city to prove that the property was a total loss prior to issuance of a raze order under an ordinance adopted under sub. (4). A&A Enterprises v. City of Milwaukee, 2008 WI App 43, 308 Wis. 2d 479, 747 N.W.2d 751, 07-0300.

66.0413 Annotation The phrase “out of repair” in sub. (1) (b) 1. is simple and capable of a common understanding. A building inspector’s interpretation of “out of repair” to mean that some aspect of the building required fixing or that the building was non-compliant with the relevant housing codes was a common-sense definition. A building can be “out of repair” for any of a number of reasons, including a sudden fire or rapid exposure to some other damaging condition or element. The phrase connotes no sense that the condition rendering the building “out of repair” has existed for any particular length of time. Auto-Owners Insurance Co. v. City of Appleton, 2017 WI App 62, 378 Wis. 2d 155, 902 N.W.2d 532, 16-1227.

66.0413 Annotation There is no basis in this section for a rule that smoke and water damage remediation are not part of the “cost of repair” of a fire. “Cost of repairs” under sub. (1) (c) is not defined, but logically it refers to the cost to remedy all conditions that render the building deficient under sub. (1) (b) 1., including not only those that render the building “out of repair,” but also those that affect the suitability of the building for human habitation. Auto-Owners Insurance Co. v. City of Appleton, 2017 WI App 62, 378 Wis. 2d 155, 902 N.W.2d 532, 16-1227.

66.0413 Annotation The exclusive remedy provision of sub. (1) (h) applies only to claims premised on the reasonableness of the order to raze. It does not apply to a challenge based on acts occurring during the subsequent repairs required under the order, and it does not bar a defense of equitable estoppel based on a city’s implementation of the order. 1033 North 7th Street v. City of Fond du Lac, 2021 WI App 38, 398 Wis. 2d 542, 961 N.W.2d 903, 20-0092.

66.0413 Annotation The “cost of repairs” under sub. (1) (c) is only those that are considered necessary to remove the public nuisance and protect the public interest. The cost of repairs must take into account the intended use of a building to limit abatement measures to the necessities of the case. In this case, any development proposals the owner of the buildings had were purely speculative such that they could not be considered the intended use of the buildings for purposes of determining the cost of repairs. The intended use of the buildings at the time the raze orders were issued was as vacant, unoccupied buildings that were not open to the public. Therefore, the proper costs to consider in determining whether the raze orders were reasonable were the costs of making each building safe for use as a vacant, unoccupied building that was closed to the public. U.S. Black Spruce Enterprise Group, Inc. v. City of Milwaukee, 2022 WI App 15, 401 Wis. 2d 421, 973 N.W.2d 804, 20-1113.

66.0413 Annotation The circuit court order granting summary judgment in favor of the city, permitting the city to raze the defendant’s building and awarding the cost of the razing to the city, was a final order under s. 808.03 (1). The order explicitly granted the city all of the relief the city requested, and all that remained was the execution of the order, namely the razing at the defendant’s expense and the calculation of the cost of the razing. City of New Lisbon v. Muller, 2023 WI App 65, 410 Wis. 2d 309, 1 N.W.3d 761, 22-1683.

66.0413 Annotation There was no constitutional “taking” when tenants were ordered to temporarily vacate their uninhabitable dwelling to permit repairs pursuant to the housing code. Devines v. Maier, 728 F.2d 876 (1984).

66.0414 66.0414 Small wireless facilities.

66.0414(1) (1) Definitions. In this section:

66.0414(1)(a) (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of wireless services.

66.0414(1)(b) (b) “Antenna equipment” or “wireless equipment” means equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.

66.0414(1)(c) (c) “Antenna facility” means an antenna and associated antenna equipment, including ground-mounted antenna equipment.

66.0414(1)(d) (d) “Applicable codes” means the state electrical wiring code, as defined in s. 101.80 (4), the state plumbing code promulgated under s. 145.02 (2) (a), the fire prevention code under ch. SPS 314, Wis. Adm. Code, the Wisconsin commercial building code under chs. SPS 361 to 366, Wis. Adm. Code, the Wisconsin uniform dwelling code under chs. SPS 320 to 325, Wis. Adm. Code, and local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons.

66.0414(1)(e) (e) “Applicant” means a wireless provider that submits an application.

66.0414(1)(f) (f) “Application” means an application for a permit under this section to collocate a small wireless facility or to install, modify, or replace a utility pole.

66.0414(1)(g) (g) “Collocate,” “collocate on,” or “collocation” means the placement, mounting, replacement, modification, operation, or maintenance of a small wireless facility on, or of ground-mounted antenna equipment adjacent to, a structure.

66.0414(1)(h) (h) “Communications facilities” means the set of equipment and network components, including wires and cables and associated facilities, used by a communications service provider to provide communications service.

66.0414(1)(i) (i) “Communications network” means a network used to provide a communications service.

66.0414(1)(j) (j) “Communications service” means cable service, as defined in 47 USC 522 (6), telecommunications service, as defined in 47 USC 153 (53), information service, as defined in 47 USC 153 (24), or wireless service.

66.0414(1)(k) (k) “Communications service provider” means a person that provides communications service.

66.0414(1)(L) (L) “Facility” means an antenna facility or a structure.

66.0414(1)(m) (m) “Fee” means a one-time charge.

66.0414(1)(n) (n) “Governmental pole” means a utility pole that is owned or operated by the state or by a political subdivision in a right-of-way.

66.0414(1)(o) (o) “Investor-owned electric utility” means a public utility whose purpose is the generation, transmission, delivery, or furnishing of electric power but does not include a public utility owned and operated wholly by a municipality or a cooperative association organized under ch. 185.

66.0414(1)(p) (p) “Micro wireless facility” means a small wireless facility that does not exceed 24 inches in length, 15 inches in width, and 12 inches in height and that has no exterior antenna longer than 11 inches.

66.0414(1)(q) (q) “Permit” means written authorization required by the state or a political subdivision to perform an action, or initiate, continue, or complete a project.

66.0414(1)(r) (r) “Political subdivision” means any city, village, town, or county.

66.0414(1)(s) (s) “Rate” means a recurring charge.

66.0414(1)(t) (t) “Right-of-way” means the area on, below, or above a highway, as defined in s. 340.01 (22), other than a federal interstate highway; sidewalk; utility easement, other than a utility easement for a cooperative association organized under ch. 185 for purposes of providing or furnishing heat, light, power, or water to its members only; or other similar property, including property owned or controlled by the department of transportation.

66.0414(1)(u) (u) “Small wireless facility” means a wireless facility to which all of the following apply: