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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                     This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
November 26, 2002
A party may file with the Supreme Court a
                                                                    Cornelia G. Clark                                                   petition to review an adverse decision by the
                                                                    Clerk of Court of Appeals                                           Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                        and RULE 809.62.
                                                                                                                                        Cir. Ct. No.   01 CV 3399
Appeal No.                                                          02-0279
STATE OF WISCONSIN                                                                                                                      IN COURT OF APPEALS
DISTRICT I
CITY OF WEST ALLIS AND
COMMUNITY DEVELOPMENT
AUTHORITY OF THE CITY OF
WEST ALLIS,
PLAINTIFFS-RESPONDENTS,
V.
WEHR STEEL CORPORATION,
CARNES COMPANY, INC.,
AND VENTUREDYNE, LTD.,
DEFENDANTS-APPELLANTS.
APPEAL  from a judgment and  an  order  of  the circuit court for
Milwaukee County:   WILLIAM J. HAESE, Judge.   Dismissed.
Before Wedemeyer, P.J., Fine and Schudson, JJ.
¶1                                                                  SCHUDSON, J.        Wehr Steel Corporation, Carnes Company, Inc.,
and  Venturedyne,  Ltd.,  (collectively,                            “Carnes”)  appeal  from  the  circuit  court




No. 02-0279
judgment  granting  summary  judgment  to  the  City  of  West  Allis  and  the
Community  Development  Authority  of  the  City  of  West  Allis                           (collectively,
“City”).  The  judgment  granted  the  City’s  request  for  authorization  under
Wisconsin’s  Blight  Elimination  and  Slum  Clearance  Act,  see  WIS.  STAT.
§ 66.1333                                                                                   (1999-2000),1  to  enter  Carnes’  West  Allis  property  to  conduct
environmental  and  geotechnical  investigation  and  testing  in  preparation  for
possible condemnation proceedings and acquisition of the property.
¶2                                                                                          Carnes  also  appeals  from  the  circuit  court’s  subsequent  order
denying its motion to vacate the summary judgment.   The court rejected Carnes’
argument, presented for the first time in support of its motion to vacate, that the
court lacked competency to exercise subject matter jurisdiction over the City’s suit
because, as Carnes contended, the City had failed to comply with the statutory
prerequisites for access to the property.
¶3                                                                                          Specifically,  on  appeal,  Carnes  contends  that  because  the  City
sought “spot” blight elimination under WIS. STAT. § 66.1333(5)(c), and failed to
follow  the  statutory  procedures  for  designation  of  a  “project  area”  for  blight
elimination under WIS. STAT. §§   66.1333(5)(a)3 and 66.1333(6), the circuit court
was not competent to authorize the City’s access to the property—access, Carnes
maintains, which could only have followed upon a  “project area” designation.
Additionally, Carnes contends, even assuming the court was competent to order
such  access,  it  erred  in  granting  the  City’s  request  because  the  City did  not
demonstrate any necessity to enter the property, and could not establish such
necessity because the property’s environmental condition, and the need for further
1  All references to the Wisconsin Statutes are to the 1999-2000 version.
2




No. 02-0279
testing, had been conclusively litigated in an earlier action involving the property
owner and the Wisconsin Department of Natural Resources (DNR)2.
¶4                                                                                                    The  City  responds  that:  (1)  Carnes  waived  its  challenge  to  the
competency  of  the  circuit  court;                                                                  (2)  it                                                                    (the  City)  was  not  required  to  seek
designation of the property as a “project area” in order to gain the requested order
because,  under  the  statutory  general  grants  of  authority,  see  WIS.  STAT.
§§ 66.1333(5)(a)  &                                                                                   (17),  the  court  could  order  access  for                               “spot”  blight
elimination; (3) previous litigation involving the property-owner and the DNR did
not include the City and had not conclusively resolved the issues in the instant
action; and (4) the undisputed record established the necessity for entry.
¶5                                                                                                    Following extensive briefing, and based on the oral argument before
this court, we conclude that we need not reach the underlying issues because the
City, acting in accordance with the judgment authorizing access to the property,
has  conducted  the  investigation  and  testing  it  desired.    Thus,  the  matters  in
controversy are moot.   See State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3,
233 Wis. 2d 685, 608 N.W.2d 425 (“An issue is moot when its resolution will
have no practical effect on the underlying controversy.”).   Accordingly, this appeal
is dismissed.
I.   BACKGROUND
¶6                                                                                                    For many years, the Wehr Steel Corporation operated a foundry on a
thirty-two acre property in West Allis and West Milwaukee.   In 1986, Wehr filed
2  The City and Carnes, in the circuit court and on appeal, interchangeably refer to the
plaintiff in the previous litigation as either the Wisconsin Department of Natural Resources or the
State of Wisconsin.   For purposes of our review, we will refer to the plaintiff in the previous
litigation as the Wisconsin Department of Natural Resources (DNR).
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No. 02-0279
for bankruptcy; in 1990, its trustee transferred the property to Carnes Company,
Inc.3    The underlying action involved the twelve-acre portion of the property
located in West Allis.
¶7                                                                                                    In                                                                        1988,  the  DNR  filed  an  environmental  enforcement  action
covering  the  entire  thirty-two acre  site.    In                                                   1991,  the  action culminated in a
stipulated settlement and judgment closing the property and extensively detailing
the remedial actions that would be required for any further development of the
property.   The stipulation also provided that, regarding ground water monitoring,
the DNR continued “to retain its authority to act or require action under its lawful
authority, should there be any new and substantial evidence showing a significant
negative change in groundwater quality.”
¶8                                                                                                    In 1999, in anticipation of its effort to acquire the twelve West Allis
acres, implement their remediation, and restore them to economically productive
use, the City applied to the United States Environmental Protection Agency for a
grant to participate in its Brownfield Assessment Pilot Project.4   The goals for the
proposed site were:
(1)  to  determine  environmental  conditions  on  the  Wehr
Steel  Site,  which  may  adversely  affect  the  acquisition
and/or redevelopment of the site; (2) to fully characterize
environmental impacts, which may be discovered;  (3) to
plan remedial activities to address environmental impacts
and estimate the costs of said remedial activities; and (4) to
conduct assessment and remedial planning in accordance
3 According to Carnes, although Wehr was dissolved in 1993, the City “asserted in the
trial court that [it] was unsure of the ownership of the Property and thus brought suit against all
three defendants, i.e., Carnes, the dissolved Wehr[,] and Carnes’ sister corporation, Venturedyne,
Ltd.”
4  A brownfield is a site, or portion thereof, that has actual or perceived contamination
and an active potential for development or reuse.  See U.S. Envtl. Prot. Agency, Brownfields Fact
Sheet, EPA Publication Number EPA 500-F-00-241 (Oct. 2000).   The funding is provided to
assess brownfield sites and to test clean-up and redevelopment models.  See id.
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No. 02-0279
with  the  guidelines  of  the  Wisconsin  Act                                                          453  Land
Recycling Law.
Later that year, the West Allis Common Council approved a resolution authorizing
the City to acquire the twelve acres as  “blighted property.”    See WIS. STAT.
§ 66.1333(5)(c).    The  City  held  a  public  hearing  and  adopted  the  Common
Council’s resolution.   See WIS. STAT. § 66.1333(5)(c)2.   Carnes, however, refused
to allow the City to enter the property.   Thus, on April 19, 2001, the City filed the
underlying   action   seeking   access   to   the   property   under   WIS.   STAT.
§ 66.1333(5)(c).5
¶9                                                                                                      The City argued that undisputed evidence of the past activities at the
property, and the virtual absence of any information about the property’s current
environmental condition, established the necessity for investigation and testing.
Carnes responded that the stipulated settlement of the prior action between the
DNR and Wehr Steel provided the City with sufficient environmental information
and foreclosed any possibility that the City could establish the necessity for entry
to the site to conduct further investigation and testing.
5 In its complaint, the City first referred to its authority under WIS. STAT. Ҥ 66.1333, The
Blight  Elimination  and  Slum  Clearance  Act.”     It  then  stated  that,  under  WIS.  STAT.
“§ 66.1333(5)(c)1g.a. and b.,” it had sought “advance approval for acquisition” of the property,
and, under WIS. STAT. “§ 66.1333(5)(c)2,” it had “held a Public Hearing … to determine if the
Site was blighted property.”   Later in the complaint, the City also referred to its “request[]” and
“demand”  to  Carnes  for  access  to  the  property                                                    “for  purposes  of  an  environmental  and
geotechnical investigation in furtherance of the [its] acquisition process,” under WIS. STAT. “§
66.1333 (5)                                                                                             (a)3” and “§ 66.1333(5)(c)1r.”   Ultimately, the complaint reiterated its first and more
general statutory reference, “demand[ing] the following relief: … Judgment and issuance of an
order declaring the [City’s] right to conduct the necessary investigations to fulfill its legislative
mandate pursuant to [WIS. STAT.] § 66.1333.”
At oral argument before this court, the City clarified that it always had been proceeding
under WIS. STAT. § 66.1333(5)(c), targeting “spot” blight elimination, and, as Carnes’ contended,
that it never had proceeded on any theory involving “project area” designation.
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No. 02-0279
¶10    On November 27, 2001, the circuit court, ruling on cross-motions for
summary judgment, concluded that the 1991 settlement did not preclude the City’s
suit because the earlier action did not involve the City as a party, had not “fully
examine[d] the environmental status of the lot in question,” and, in that earlier
action, the parties had not “fully litigate[d] the environmental status of the site.”
The court further explained:
The  Wisconsin  Department  of  Natural  Resources  made
certain  that                                                                           [the  West  Allis  property]  was  closed  as  an
immediate   environmental   hazard   through   the                                      1991
Stipulation and made sure that Venturedyne was complying
with  the  State’s  environmental  laws.     The  Wisconsin
Department of Natural Resources did not bring the action
to fully explore the future development possibilities of [the
property].    This is the exact reason why the Legislature
created   the                                                                           [community  development   authorities—]to
develop brownfields and other troubled properties, not to
enforce the environmental laws.
                                                                                        The  court  also  concluded  that  the  City  had  established  that   “entry   onto   the
property” was necessary.   The court explained:
The site’s long history of industrial use provides a basis to
believe that pollution exists on the site.   The record clearly
shows that testing on [the property] was minimal at best.
One monitoring well was put in on the site previously, and
when analyzed in 1990 revealed multiple Preventive Action
Levels were exceeded.   One soil boring was carried out in
1989, but apparently analytical chemical data is wanting
from those borings.   To the Court’s knowledge, no other
analysis has been undertaken in recent years.
… [T]here is no information on how great a risk, or
how contaminated, [the property] may be.   Certainly this is
information crucial to the valuation of the land and to an
analysis of its potential to be developed.
Thus, the court granted the City’s request and entered a judgment authorizing
access to the property for environmental investigation and testing.   Two months
later, the court rejected Carnes’ argument, presented for the first time in Carnes’
6




No. 02-0279
motion to  vacate  the  judgment,  that it lacked competency to exercise  subject
matter jurisdiction.
¶11    Carnes moved for relief pending appeal; the circuit court denied the
motion.   On February 1, 2002, this court denied Carnes’ request for a stay of the
circuit court judgment pending disposition of this appeal.
¶12    On November 5, 2002, this court heard oral argument.   Counsel for
the City, arguing that the case was moot, informed the court that the City had
entered the property, conducted the investigation and obtained the soil samples it
needed, and carried out the testing, and that it anticipated no further need for
access to the property for such purposes.    Counsel for Carnes, challenging the
City’s mootness claim, responded that: (1) in some undefined way, the possible
future use of the test results could be improper if the samples were not obtained in
conformity with the statutes; and (2) in some undefined suit, Carnes might bring
an action against the City as a result of its allegedly improper method of obtaining
access to the property.
II.   DISCUSSION
¶13    As we recently reiterated: “An issue is moot when its resolution will
have no practical effect on the underlying controversy.   In other words, a moot
question is one which circumstances have rendered purely academic.   Generally,
moot issues will not be considered by an appellate court.”   Olson, 2000 WI App
61  at  ¶3  (citations  omitted).    Here,  while  the  parties  have  presented  several
intriguing issues, our resolution of them can have no practical effect on whether
the City gains access to the property to conduct its desired investigation and
testing.    It  is  undisputed  that  the  City  has  already  entered  the  property  and
conducted the investigation and testing.
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No. 02-0279
¶14    Still, “there are exceptions to the rule of dismissal for mootness.”
Id.   We explained:
We will consider a moot point if “the issue has great public
importance, a statute’s constitutionality is involved, or a
decision is needed to guide the trial courts.”   Furthermore,
we take up moot questions where the issue is  “likely of
repetition  and  yet  evades  review”  because  the  situation
involved is one that typically is resolved before completion
of the appellate process.
Id. (citations omitted).   Here, no such exception applies.
¶15    The  constitutionality  of  the  statutes  involved  in  the  parties’
arguments is not at issue.   See id.   The issues are not ones that would necessarily
or typically evade review before completion of the appellate process.6   See id.
And, given the unique and fact-intensive nature of the underlying controversy, our
determination of these issues would not necessarily address any issue of recurring
great public importance or provide needed guidance to the trial courts.   See id.
Carnes’ comments at oral argument, about some future use of the tests or some
future  action  against  the  City,  were  entirely  speculative  and  do  not  alter  the
analysis.   Accordingly, “the rule of dismissal for mootness” requires us to dismiss
this appeal.   See id.
By the Court.—Appeal dismissed.
6 Indeed, in this case, we denied a stay of the circuit court judgment not because we did
not recognize the potential immediacy and significance of the City’s entry to the property.   In our
order denying relief, we commented that “it is certainly true that, once West Allis representatives
begin testing, that act cannot be undone.”   We concluded, however, that, in part, because the
circuit court hearing on Carnes’ request for relief pending appeal was held off the record, and
because Carnes had not even provided this court with the City’s circuit court submissions in
opposition to its request for a stay, Carnes had failed to provide a record that could allow us to
conclude that it had carried its burden “to establish that the circuit court erroneously exercised
discretion when it denied relief pending [disposition of this] appeal.”
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No. 02-0279
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