Vandenplas v. City of Muskego

• Decision Date: 21 January 1985
• Docket Number: No. 83-2998,83-2998
• Citation: 753 F.2d 555
• Parties: Lawrence VANDENPLAS and Barbara Vandenplas, Plaintiffs-Appellants, v. CITY OF MUSKEGO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 555

753 F.2d 555

Lawrence VANDENPLAS and Barbara Vandenplas, Plaintiffs-Appellants, v. CITY OF MUSKEGO, et al., Defendants-Appellees.

No. 83-2998.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 9, 1984.

Decided Jan. 21, 1985.

Robert E. Sutton, Walter Kelly, Sutton & Kelly, Milwaukee, Wis., for plaintiffs-appellants.

Raymond J. Pollen, Riordan, Crivello, Carlson, Mentkowski & Henderson, Milwaukee, Wis., for defendants-appellees.

Before WOOD and CUDAHY, Circuit Judges, and WISDOM, Senior Circuit Judge. ^*

CUDAHY, Circuit Judge.

This is an appeal from a final judgment entered on a jury verdict in an action for damages and declaratory relief under 42 U.S.C. Sec. 1983. The plaintiffs, Lawrence Vandenplas and his daughter Barbara Vandenplas, sued the City of Muskego, Wisconsin, and various of its employees and elected and appointed officials for damages arising out of the allegedly unconstitutional manner in which the defendants razed two buildings on the Vandenplases' farm. The trial court granted summary judgment for all defendants except certain unnamed police officers. Plaintiffs were given leave to amend their complaint, did so, and reached a jury on the issue of unconstitutional use of force by the police officers. The jury found for the defendant officers. The plaintiffs now appeal the grant of summary judgment as to all other defendants and the jury verdict as to the police defendants.

I.

Lawrence Vandenplas and his wife Bernice own property in the City of Muskego on which, before the events recounted here, were located an old farmhouse and a barn which were used for storing grain and housing hogs respectively. The buildings had fallen into a state of disrepair, and on August 8, 1980, defendant Gerald P. Lee, the building inspector for the city, issued a condemnation order for both structures pursuant to Sec. 66.05, WIS.STAT. (1979-80). That statute provides, in part, as follows:

(1)(a) The governing body or the inspector of buildings * * * may order the owner of premises upon which is located any building or part thereof within such municipality, which in its judgment is so old, dilapidated or has become so out of repair as to be dangerous, unsafe, insanitary or otherwise unfit for human habitation, occupancy or use, and so that it would be unreasonable to repair the same, to raze and remove such building or part thereof, or if it can be made safe by repairs to repair and make safe and sanitary or to raze and remove at the owner's option[.] * * *

(b) Whenever a municipal governing body, inspector of buildings or designated officer determines that the cost of such repairs would exceed 50 per cent of the assessed value of such building divided by the ratio of the assessed value to the recommended value as last published by the state supervisor of assessments for the municipality within which such building is located, such repairs shall be presumed unreasonable and it shall be presumed for the purposes of this section that such building is a public nuisance.

* * *

* * * (3) Anyone affected by any such order shall within the time provided by s. 893.76 apply to the circuit court for an order restraining the inspector of buildings or other designated officer from razing and removing the building or part thereof or forever be barred. Hearing shall be had within 20 days and shall be given precedence over other matters on the court's calendar. The court shall determine whether the order of the inspector of buildings is reasonable, and if found reasonable the court shall dissolve the restraining order, and if found not reasonable the court shall continue the restraining order or modify it as the circumstances require. Costs shall be in the discretion of the court. If the court finds that the order of the inspector of buildings is unreasonable, the inspector of buildings or other designated officer shall issue no other order pursuant to the authority of this section in regard to the same building or part thereof until its condition is substantially changed. The remedies provided in this subsection are exclusive remedies and anyone affected by such an order of the inspector shall not be entitled to recover any damages for the razing and removal of any such building.

* * *

* * *

(8)(c) Either the owner or the city or village may appeal to the court of appeals within 30 days from the date of entry of the order of the circuit court.

WIS.STAT. Sec. 66.05 (1979-80). ¹

Pursuant to Sec. 66.05, the Vandenplases filed suit in Waukesha County Circuit Court to enjoin the proposed destruction of the buildings. The court entered a temporary restraining order as required by the statute, and conducted a hearing on September 3 and 4, 1980. The building inspector testified to the condition of the building and the unreasonableness of repairs, Mr. Vandenplas testified to the agricultural use of the buildings and his intention to effect repairs and the judge viewed the property. The court entered an order on September 8, 1980, finding the raze order reasonable, but staying any demolition for six months to allow plaintiffs to repair the buildings. This order was not appealed.

The plaintiffs returned to the circuit court on March 12, 1981, seeking an extension of time to continue making repairs. The court entered a temporary restraining order as required by the statute, and held an evidentiary hearing on March 23, 1981, at which Mr. Vandenplas testified to the repairs he had made and would make. The court dissolved the temporary restraining order and refused to grant a further stay, finding substantial progress had not been made in repairing and restoring the buildings. The plaintiffs appealed to the Wisconsin Court of Appeals, which temporarily stayed the circuit court order. On April 15, 1981, the court of appeals vacated its temporary stay and dismissed the appeal, holding that the plaintiffs' failure to appeal the September 8, 1980, order barred them from challenging the reasonableness of the raze order or the denial of a permanent injunction. The appellate court further held that the circuit court had lacked authority to grant the original six month stay once it determined the raze order was reasonable. Plaintiffs did not seek further appellate review.

On May 11, 1981, the City informed the Vandenplases that it would proceed with the razing of the buildings. Mr. Vandenplas sought and obtained a temporary restraining order from the circuit court. The court then held a hearing on May 12, 1981, at which it confirmed its previous order allowing the razing of the buildings. Mr. Vandenplas then sought injunctive relief on due process and equal protection grounds in federal district court. The district court denied the motion for a temporary restraining order after a hearing and dismissed the complaint.

Finally the Vandenplases sought passage of a special resolution by the Common Council of the city allowing them to continue repairs and to avoid destruction of the buildings. The resolution was defeated, several individual defendants voting against it, allegedly with the consent of the mayor, also a defendant. On June 12, 1981, the buildings were razed by employees of the city public works department. Plaintiffs allege that during the demolition they were subjected to excessive force by the police defendants.

Plaintiffs seek a declaratory judgment that Sec. 66.05 is unconstitutional on its face as providing inadequate notice and opportunity for hearing, and as applied to their property since the property was not in the condition complained of and was not significantly different from other uninhabited farm properties in the city which have not been subject to raze orders. They also allege that both the condemnation order and the refusal to grant a variance were motivated by a desire to retaliate for Mr. Vandenplas's exercise of his First Amendment rights and his successful opposition to previous actions brought against him by the city. The plaintiffs also seek compensatory and punitive damages. The plaintiffs' claims were summarized by the district court as follows:

"(1) The property owners, Mr. and Mrs. Vandenplas, sue the Building Inspector and the City of Muskego for razing their buildings rather than allowing them to repair them. It is alleged that such behavior was in violation of the equal protection and due process clauses of the Fourteenth Amendment.

"(2) The property owners, Mr. and Mrs. Vandenplas, sue the Building Inspector, the Mayor, and the City of Muskego for razing their buildings. It is alleged that such behavior was retaliatory punishment against Mr. and Mrs. Vandenplas for exercising their rights to disagree with the City, resist it in the courts, and maintain their property as farm property in the face of residential objection.

"(3) The property owners, Mr. and Mrs. Vandenplas, sue the four-member majority of the Common Council, the Building Inspector, the Mayor, and the City for refusing a special resolution that would have permitted them to complete repairs and avoided destruction of the buildings. It is alleged that such refusal was retaliatory punishment against Mr. and Mrs. Vandenplas for exercising their rights to disagree with the City, resist it in the courts, and resist the original raze order.

"(4) The property owners, Mr. and Mrs. Vandenplas, and their daughter, Barbara, sue the Mayor, the Building Inspector and the Richard Roe police defendant for excessive force on the scene of the demolition of the buildings on June 12, 1981.

"(5) As to all of the above claims the City of Muskego is also a defendant on the basis of its indemnity liability under Sec. 895.46, Wis.Stats., as to any individual defendant found liable, upon the basis that all defendants were acting within the scope of their respective employments.

"(6) As to claims (1) and (2) above the John Doe public works defendant is joined for executing the constitutional violations in the actual razing of the...