Town of Saratoga v. Arnold L. Strangfeld

COURT OF APPEALS
DECISION NOTICE
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.
September 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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.

Appeal No. 2021AP1592 Cir. Ct. No. 2016CV358

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

TOWN OF SARATOGA,

PLAINTIFF-RESPONDENT,

V.

ARNOLD L. STRANGFELD AND PATRICIA H. STRANGFELD,

DEFENDANTS-APPELLANTS,

SPRINGCASTLE AMERICAN FUNDING TRUST,
ARROW FINANCIAL SERVICES LLC,
GREEN TREE SERVICING LLC, CAPITAL ONE BANK
AND CREDITONE LLC,

INTERESTED PERSONS.

APPEAL from an order of the circuit court for Wood County:
GREGORY J. POTTER, Judge. Affirmed.

Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.
No. 2021AP1592

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Arnold and Patricia Strangfeld appeal an order of
the circuit court appointing a receiver under WIS. STAT. § 823.23 (2019-20).1 The
court appointed the receiver to abate what the court concluded were conditions on
the Strangfelds’ property that constituted a public nuisance, based on allegations
by the Town of Saratoga that the property violated a Town ordinance. The Town
ordinance provides that all “fail[ures] to keep” property in the Town “free of litter,
debris, trash, or rubbish” create public nuisances that “offend the comfort, health,
repose or safety of the Town.” See TOWN OF SARATOGA, WIS., ORDINANCES
No. 12-2-15A, § 2(D) (Dec. 2, 2015).2

¶2 As a threshold issue, the Town argues that this court lacks
jurisdiction to decide the issues raised by the Strangfelds because they did not
timely appeal an earlier circuit court order that the Town contends was a final
order for purposes of determining this court’s appellate jurisdiction. We conclude
that this court has jurisdiction over the issues raised by the Strangfelds.

¶3 On the merits, the Strangfelds specifically argue that the circuit court
erred in concluding that (1) the Town provided sufficient notice under WIS. STAT.
§ 823.23 before applying for a receiver, (2) there was sufficient evidence to
determine that conditions on the Strangfelds’ property constituted a public

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

All references to the Town of Saratoga’s Ordinances are to the version dated
2

December 2, 2015, unless otherwise noted.

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No. 2021AP1592

nuisance, and (3) the Town’s claims failed under WIS. STAT. § 823.08, which
places limitations on nuisance actions brought against agricultural uses of
properties. The Town fails to adequately brief any of the merits issues. We
nonetheless reject each of the Strangfelds arguments as undeveloped in one way or
another, because they consistently fail to identify any basis for reversal and we
cannot abandon our neutral role to develop their contentions. Accordingly, we
affirm.3

BACKGROUND

¶4 Since 1967 the Strangfelds have owned land in the Town on which
they reside. They also put the land to agricultural use, specifically raising animals.
Before the events underlying this appeal, in the 1990’s, the Town issued citations
for public nuisance ordinance violations against the Strangfelds and pursued a
complaint under statutory public nuisance law contained in then WIS. STAT
ch. 823, which resulted in a settlement and dismissal. The Town issued more
recent citations to the Strangfelds in 2007, 2008, and 2015.

¶5 A Town board member eventually testified that in 2016 she noticed
that various items appeared to have been recently moved onto the Strangfelds’
front yard and “arranged” in what she described as a “haphazard” manner. This
led the Town to commence this action seeking the appointment of a receiver to
abate an alleged public nuisance. However, before doing so the Town served the
Strangfelds in July 2016 with a notice of an intent to request appointment of a

3
We observe that neither party suggests to this court that any issue in this appeal may be
moot as a result of changed circumstances, actions or inactions of a receiver, or for any other
reason. Therefore, we have no occasion to address potential mootness.

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receiver, as is required by statute.4 See WIS. STAT. § 823.23(2)(b). The notice
stated that the Strangfelds’ property had “been in an ongoing state of
noncompliance” with the Town’s ordinance 12-2-15A, § 2(D) and its “predecessor
ordinance.” The notice did not provide any details regarding alleged violations of
the ordinance or its predecessor—it merely provided the ordinance number. We
relate additional details about the notice in the Discussion section below.

¶6 The Town filed its petition for a receiver in October 2016. As its
sole demand for relief, the Town sought “the appointment of a receiver pursuant to
the terms of [WIS. STAT.] § 823.23 to take control of the [Strangfelds]’ real estate
and abate the ongoing nuisance.”

¶7 The Strangfelds moved to dismiss the petition in January 2018.
They argued that the Town’s notice was insufficient because it did not adequately
set forth the conditions that the Town alleged constituted public nuisances or, to
the extent that it might have, identified only conditions that did not constitute
public nuisances. Related to this alternative argument, the Strangfelds contended
that the Town’s action sought the abatement of conditions that were incidental to,
and therefore protected as, agricultural uses of the property under WIS. STAT.
§ 823.08. The circuit court denied the motion in an oral ruling in December
2018.5

4
WISCONSIN STAT. § 823.23(2)(b) provides in pertinent part that “[a]t least 60 days
before filing an application for the appointment of a receiver” the applying municipality “shall
give written notice … to all owners … of the intent to file the application ….”
5
After the parties conducted discovery that included depositions, the Strangfelds moved
for summary judgment dismissing the action. Although the motion made frequent reference to
deposition testimony, it was at least in part a reassertion of the Strangfelds’ position that the
Town had failed to provide adequate notice or identify conditions on their property that qualified
(continued)

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¶8 A trial commenced in October 2019, was suspended for a time, then
resumed in July 2020.6 The circuit court made an oral ruling in November 2020
and followed that with a December 2020 order entitled “Findings and Judgment,”
which incorporated findings and conclusions made in the oral ruling.

¶9 We describe the December 2020 order in more detail below. It is
sufficient for background purposes to note that the circuit court reached the
substantive conclusion that “the Town has met [its] burden of proof[] that there is
clear, satisfactory and convincing evidence that the defendants are in violation of
the Town[’s] public nuisance ordinance.” The court’s written order added
instructions that included the possibility of the Town “being able to apply … for a
Receiver” in later proceedings.

¶10 The Town brought a motion for contempt in July 2021, which was
accompanied by an affidavit averring that the Strangfelds, through their attorney,
had refused to grant Town personnel access to their property, in violation of the
December 2020 order. The circuit court issued a written order appointing a
receiver for the property in September 2021, but the court held in abeyance the
motion for contempt. The Strangfelds appeal.

as public nuisances. The circuit court denied the motion, in part based on its earlier ruling having
already addressed the issue of notice.
6
The suspension occurred when the parties reached a tentative settlement. The court
ordered that “[i]f there are certain items depicted [in trial exhibit photos of the property] that the
parties cannot agree should be removed, the court will require that each party state in writing their
justification for either the item being in violation of [the] nuisance ordinance or being in
compliance.” However, this order did not suffice to cause the tentative settlement to stick, and
the trial resumed.

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DISCUSSION

¶11 We begin with the pertinent standards of review. Then we address
the issue of the finality of the circuit court’s December 2020 order as it relates to
this court’s jurisdiction to address the merits in this appeal. Because we conclude
that we have jurisdiction over the merits issues, we address the merits, explaining
why we reject the Strangfelds’ arguments based on our conclusion that they are
undeveloped.

¶12 We determine independently whether an order is final for purposes
of resolving issues regarding our appellate jurisdiction. See Admiral Ins. Co. v.
Paper Converting Mach. Co., 2012 WI 30, ¶22, 339 Wis. 2d 291, 811 N.W.2d
351. To the extent our analysis involves interpreting and applying statutes such as
WIS. STAT. §§ 823.08 and 823.23, we do so de novo. See Meyers v. Bayer AG,
Bayer Corp., 2007 WI 99, ¶22, 303 Wis. 2d 295, 735 N.W.2d 448. In reviewing
the circuit court’s findings of fact, we will not set its findings aside unless they are
“clearly erroneous.” See A & A Enters. v. City of Milwaukee, 2008 WI App 43,
¶17, 308 Wis. 2d 479, 747 N.W.2d 751 (citing WIS. STAT. § 805.17(2)).

I. Scope Of Appellate Jurisdiction

¶13 The Town briefly asserts that this court does not have jurisdiction to
address the merits of the issues now raised by the Strangfelds in their appeal of the
circuit court’s September 2021 order appointing the receiver. The Town asserts
that the Strangfelds failed to timely appeal the earlier December 2020 order, which
the Town contends was a final order disposing of the merits. See WIS. STAT.
§ 808.03(1)-(2) (in general only final judgments or orders “may be appealed as a
matter of right”); WIS. STAT. RULE 809.10(1)(e) (court of appeals loses
jurisdiction over untimely appeals).

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¶14 The Strangfelds argue that the circuit court’s more recent September
2021 order appointing the receiver was the first final order to be issued in the case,
meaning that their appeal of the September 2021 order brings before this court
challenges to prior circuit court rulings, including the November 2020 order. See
WIS. STAT. RULE 809.10(4) (“An appeal from a final judgment or final order
brings before the court all prior nonfinal judgments, orders and rulings adverse to
the appellant and favorable to the respondent made in the action or proceeding not
previously appealed and ruled upon.”).

¶15 We conclude that the December 2020 order was not a final order
under precedent of our supreme court.

¶16 “A final judgment or final order is a judgment, order or disposition
that disposes of the entire matter in litigation as to one or more of the parties,
whether rendered in an action or special proceeding.” WIS. STAT. § 808.03(1).
“To constitute a final order or judgment, the document must explicitly dismiss or
adjudge the entire matter in litigation as to one or more parties.” Admiral, 339
Wis. 2d 291, ¶27. “‘Deciding’ a case in the sense of merely analyzing legal issues
and resolving questions of law does not dispose of an entire matter in litigation as
to one or more parties.” Wambolt v. West Bend Mut. Ins. Co., 2007 WI 35, ¶34,
299 Wis. 2d 723, 728 N.W.2d 670.

¶17 We now summarize additional background related to the December
2020 order entitled “Findings and Judgment” and incorporated findings. The
circuit court’s findings were not specific in addressing any particular items or
conditions on the Strangfeld property. Instead, by way of example, the court made
the general finding that, dating back to the mid-1990’s, the property was used for
some agricultural uses, specifically “husbandry,” which we understand to be the

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care and breeding of animals. As noted, the court concluded that the Town had
met its burden to prove that the Strangfelds were then in violation of the Town’s
“public nuisance ordinance.”

¶18 The December 2020 order added the following as directions to the
parties:

Representatives of the Town of Saratoga will have
the opportunity to enter the Strangfeld property and identify
everything that they feel constitutes a nuisance, excluding
anything related to agricultural use and vehicles. Said
inspection will take place no later than December 7, 2020.
The Town will then notify [the Strangfelds] of those items
remaining on the property that [the Town] consider[s] to be
non-compliant. [The Strangfelds] will have until April 30,
2021 to remove or store inside an enclosed structure, any of
the items detailed by the Town of Saratoga. Failure to do
so will result in the Town being able to apply to the Court
for a Receiver to bring the property into compliance.

¶19 Applying pertinent legal principles to the December 2020 order, we
cannot say that it explicitly adjudges the entire matter of the Town’s petition. To
repeat, that petition specifically and exclusively sought as relief the appointment
of a receiver under WIS. STAT. § 823.23 to abate an alleged nuisance. Viewed in
light of that statute’s requirements, the December 2020 order at most “decided”
the case in that it “merely analyz[ed]” the legal predicates to the appointment of a
receiver but without actually doing so, and arguably only some of the necessary
predicates. See Wambolt, 299 Wis. 2d 723, ¶¶7, 33-35 (memorandum decision
that granted defendant’s motion for summary judgment and stated that plaintiffs
“‘have no viable claim’” did “not constitute an ‘unequivocal order to dismiss all of
the claims” because the order did not “actually dispose of the case by dismissing
or adjudging it” (quoted source omitted)).

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¶20 To explain further, WIS. STAT. § 823.23(2)(g) requires the circuit
court to make the following determinations in deciding whether to appoint a
receiver: (1) whether any interested party attempted to abate the alleged nuisance
before the appointment of a receiver (under para. (2)(f)) or, if so, whether the
attempt was unsuccessful; (2) whether the property “is a [public] nuisance”;
(3) the extent of the abatement necessary and the scope of the work needed to
eliminate the conditions comprising the nuisance; and (4) the identity of the person
appointed as receiver to complete the abatement.7 See § 823.23(2)(a) (limiting in
pertinent part a municipality’s authorization to pursue a receiver to “nuisance[s]
under this chapter”); WIS. STAT. § 823.01 (granting municipalities jurisdiction to
maintain actions to abate “public nuisance[s]” (emphasis added)). The December
2020 order could be understood to have made a “decision” as to three of these
requirements, but ultimately did not decide the fourth—the appointment of the
receiver—and by extension did not “dispose” of the entire matter. See Wambolt,
299 Wis. 2d 723, ¶36.

7
It does not appear from the record that the parties pursued, or that the circuit court
understood that they intended to follow, the procedure described in WIS. STAT. § 823.23(2)(f),
under which an alleged public nuisance is abated without the appointment of receiver:

If, following the application for appointment of a
receiver, one or more of the interested parties elects to abate the
nuisance, the party or parties shall be required to post security in
such an amount and character as the court considers appropriate
to ensure timely performance of all work necessary to abate the
nuisance, as well as satisfy such other conditions as the court
considers appropriate for timely completion of the abatement.

Sec. 823.23(2)(f). Here, the court suspended the trial addressing the alleged existence of a public
nuisance to allow the parties to pursue a stipulated process for addressing the alleged nuisance,
but no party was required to post a security. Moreover, even if the circuit court and the parties
intended to attempt to follow this procedure, by the time trial was renewed the proceedings more
clearly followed the procedure in § 823.23(2)(g), as discussed in the text.

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¶21 Moreover, to the extent there is any ambiguity as to the finality of
the December 2020 order, ambiguity in the language of an order regarding its
finality is to be construed in favor of “preserv[ing] the right of appeal.” See
Admiral, 339 Wis. 2d 291, ¶27; see also Wambolt, 299 Wis. 2d 723, ¶46 n.20
(explaining that this rule is based on liberal construction of statutes granting the
right of appeal in order to avoid forfeiture of that right).

¶22 In reaching this conclusion, we take into account but do not deem
dispositive the following features of the order. That the circuit court denominated
the December 2020 order as containing “Findings and Judgment” does not alter
our application of WIS. STAT. § 808.03(1). See Harder v. Pfitzinger, 2004 WI
102, ¶13, 274 Wis. 2d 324, 682 N.W.2d 398 (“the label given a document by
either the circuit court or the parties is not dispositive of the question of whether
the document is a final order or judgment”). The order does not contain a
statement asserting that it is final for purposes of appeal. See Admiral, 339
Wis. 2d 291, ¶¶28-29 (the absence of a finality statement is not dispositive).
Similarly, the circuit court’s characterization of the September 2021 order—when
denying the Strangfelds’ motion for a stay pending appeal—as an “extension” of
what the court intended as a final order in December 2020 does not alter our
analysis of the earlier order’s finality in light WIS. STAT. § 823.23. While the
court’s intent to enter an order that is final is relevant to our application of
§ 808.03(1), that intent is solely established through the terms expressed in the
pertinent order, which we review de novo. See Harder, 274 Wis. 2d 324, ¶¶8, 12.

¶23 The Town argues that the December 2020 order resolved “the
merits” of the Town’s petition for a receiver and the September 2021 order was
“necessary only to enforce the [Town’s] rights [as] previously adjudicated.”
However, this confuses what we explain above is the legal analysis in the

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December 2020 order (i.e., what it “decided”) with what would have been the final
adjudication of the matter by granting the Town its requested relief based on that
analysis (i.e., what the order could have, but did not, “dispose of”).8

II. Notice

¶24 The Strangfelds argue that the circuit court erred in denying their
motion to dismiss the Town’s petition based on what they contend was the Town’s
failure to properly inform the Strangfelds of the conditions prompting the Town to
pursue the receivership. See WIS. STAT. § 823.23(2)(b)2. (requiring notice to
“include” as “information” “[t]he conditions of the residential property that
constitute a nuisance and that resulted in the decision to apply for a receiver”).
This argument is at times difficult to track. But we understand them to contend
that the allegation in the notice of “ongoing noncompliance” with a local
ordinance does not describe conditions that could constitute the kind of public
nuisance to which § 823.23 could apply. The Town wholly fails to address this
issue. Despite this, we reject the Strangfelds’ argument because they do not
develop a legally supported argument that the appropriate remedy for a

8
The Town references several orders issued by this court before the parties submitted
their substantive briefs, but we now briefly explain why none of these orders affect the analysis
provided in the text of this opinion below. In October 2021, this court denied the Strangfelds’
motion for a stay pending appeal. The Town emphasizes that, in ruling on the motion, this court
explained that it “appeared” that the Strangfelds’ appeal would be limited to issues raised
regarding the September 2021 order and not earlier orders. However, this order further stated that
this court “was not conclusively deciding” the scope of our jurisdiction and further based the
denial of the stay on an assessment of the merits of the issues raised by the Strangfelds regarding
earlier circuit court orders. In a later order, we ruled that at least some aspect of the circuit
court’s September 2021 order (appointing the receiver) was final, with the result that the
Strangfelds could appeal from it as a matter of right. But, this court further clarified that it did
not intend to resolve whether the circuit court’s December 2020 order “was final for purposes of
appeal such that the scope of this appeal is limited to issues that were newly decided by the
September 2021 order.” We address this court’s earlier orders no further.

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noncompliance of a notice with § 823.23(2)(b)2. would be dismissal of the Town’s
petition. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992) (court of appeals may disregard inadequately briefed arguments).

¶25 The Strangfelds note that there are some differences between the
notice requirements in WIS. STAT. § 823.23(2)(b) and those imposed by pleading
standards required for civil actions in WIS. STAT. ch. 801. But at no point do they
attempt to explain why the Town’s failure to abide by § 823.23(2)(b) would have
required the circuit court to reject its application for a receiver. They characterize
§ 823.23(2)(b)2. as imposing a “heightened” “specificity requirement,” but they
do not meaningfully address the text of that subpart or any other aspect of
§ 823.23 as a whole.

¶26 The Strangfelds apparently intend to analogize the failure to describe
particular alleged nuisance conditions in the notice to the failure to state a claim in
a civil complaint, which results in dismissal of the complaint. See WIS. STAT.
§ 802.06. However, they fail to provide legal authority that could support the
analogy. Under the unambiguous terms of WIS. STAT. § 823.23(2)(b), the giving
of notice is an act that is distinct from applying to the circuit court for a receiver.
Such an application would appear to be the more apt comparison to the
commencement of a civil action under ch. 801.

¶27 Moreover, it is notable that there is no dispute that the Town’s notice
met the requirement that it indicate how the Strangfelds could obtain additional
information about the alleged nuisance. See WIS. STAT. § 823.23(2)(b)3.
(requiring the notice to include contact information “the person or department
where additional information can be obtained concerning the nuisance and the
action necessary to abate the nuisance”). Thus, assuming without deciding that the

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notice gave the Strangfelds little specific information from which they could
deduce how the allegation of violating the Town’s ordinance related to particular
alleged conditions on their property, the notice told them how to actually obtain
(“can be obtained”) more information. To be sure, the Strangfelds take issue with
the way the Town handled their request for more information. But that is not a
dispute about the content of the notice itself. The point is that the Strangfelds fail
to show how the alleged defect in an otherwise compliant notice required
dismissal of the Town’s application, given that the notice gave the Strangfelds the
opportunity to pursue additional information and then either abate the alleged
nuisance or defend the impending receivership action.9

III. Sufficiency Of The Evidence

¶28 The Strangfelds argue that the Town failed to present sufficient
evidence to support a determination that a condition on their property constituted
the kind of nuisance for which a receiver can be appointed under WIS. STAT.
§ 823.23 for nuisance abatement. The Strangfelds base this primarily on the
contention that the Town’s allegation of an ordinance violation amounts to the
claim that the Strangfeld property is “untidy or messy,” which they argue does not

9
Further, in light of a legal principle stated in case law noted in the text below, we
question whether the notice here did not sufficiently identify a condition that constituted a
nuisance. See Town of Delafield v. Sharpley, 212 Wis. 2d 332, 340 & n.4, 568 N.W.2d 779 (Ct.
App. 1997) (town established prima facie existence of nuisance via violation of town ordinance
through “blight[ing]” of property with “junk or other unsightly debris”; “repeated violations of an
ordinance constitute a public nuisance”). To repeat, the notice stated that the Strangfeld property
was in a state of “ongoing noncompliance” with an ordinance of the Town. The ordinance in
question “declared” in pertinent part that the “fail[ure] to keep” property in the Town “free of
litter, debris, trash, or rubbish” is a “public nuisance.” See TOWN OF SARATOGA, WIS.,
ORDINANCES No. 12-2-15A, § 2(D); see also TOWN OF SARATOGA, WIS., ORDINANCES No. 9-19-
18, § 2(D) (Sept. 19, 2018) (current numbering) (https://dev.saratogawisconsin.org/wp-
content/uploads/2019/01/nuisance.doc00804620180920121110.pdf).

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describe a public nuisance under applicable common law standards. “A public
nuisance is a condition or activity which substantially or unduly interferes with the
use of a public place or with the activities of an entire community” (though “[t]he
number of people affected does not strictly define a public nuisance”). Physicians
Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶21, 254 Wis. 2d 77, 646
N.W.2d 777.10 We reject the Strangfelds’ argument because it fails to account for
both the circuit court’s determination that the Strangfeld property violated the
Town’s ordinance and the ways in which ordinance violations can constitute
public nuisances.

¶29 To repeat, the key substantive conclusion of the circuit court was
that the Town carried its burden to establish that the Strangfelds “are in violation”
of the Town’s ordinance, and that ordinance specifically declares all of the

10
At times, the Strangfelds appear to take the alternative position that receiverships
under WIS. STAT. § 823.23 are available for abating only those nuisances identified in WIS. STAT.
§ 254.595—specifically dealing with properties in violation of municipal building codes or local
health board regulations—as opposed to public nuisances more generally. However, § 823.23
unambiguously provides that a municipality “may apply to the circuit court for the appointment
of a receiver to abate the nuisance “under this chapter,” that is, ch. 823, in addition to nuisances
under § 254.595. Chapter 823 authorizes a municipality to “maintain an action to recover
damages or abate a public nuisance.” See WIS. STAT. § 823.01. The Strangfelds note that
§ 823.23(2)(h) requires the court to prioritize appointing, as receivers, those “authorit[ies]” or
“corporation[s]” with background in “housing,” “redevelopment,” and “community
development.” But we are not persuaded that this necessarily narrows the scope of public
nuisances to which the statute applies in a meaningful way. See also § 823.23(2)(i) (permitting
circuit court “to appoint as a receiver any other person that the court determines to be competent”
when “unable” to appoint the types of persons or entities listed in para. (h)). They assert that the
“primary purpose” of such persons or entities is to “improve[] housing conditions,” but fail to
explain how the abatement sought by the Town would not improve the conditions of residential
property.

Related to this last point, we reject, as undeveloped and raised too late on appeal (in the
reply brief), any argument that the Strangfelds may intend to make that the person actually
appointed receiver by the circuit court here was not competent to assume that role. Further, we
question whether this argument was preserved for appeal by contemporaneous objection in the
circuit court.

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following to be public nuisances that “offend the comfort, health, repose or safety
of the Town”: the “fail[ure] to keep” property in the Town “free of litter, debris,
trash, or rubbish.” See TOWN OF SARATOGA, WIS., ORDINANCES No. 12-2-15A,
§ 2(D). We do not discern the Strangfelds to challenge the court’s application of
the ordinance to the evidence presented. Rather, the Strangfelds appear to contend
that the alleged ordinance violation was insufficient to establish a public nuisance
for WIS. STAT. § 823.23 purposes because some of the conduct restricted by the
ordinance does not necessarily constitute a public nuisance under pertinent
common law. We now explain why that argument fails.

¶30 The Strangfelds fail to account for the following aspects of the
common law regarding the violation of municipal ordinances as a basis for
establishing the existence of a public nuisance. To begin, “[t]he police power of a
municipality extends to declaring certain acts or conditions to be a public
nuisance.” Town of Delafield v. Sharpley, 212 Wis. 2d 332, 338, 568 N.W.2d
779 (Ct. App. 1997). Moreover, “repeated violations of an ordinance constitute a
public nuisance.” Id. at 340 n.4 (citing State v. H. Samuels Co., Inc., 60 Wis. 2d
631, 639, 211 N.W.2d 417 (1973)).

¶31 In Sharpley, this court concluded that a Town was able to establish a
prima facie case on summary judgment for the existence of a public nuisance on
the Sharpleys’ properties. Id. at 340. This was based on an affidavit alleging that
items were “scattered around” the properties, including “batteries, radiators,
miscellaneous machinery and a refrigerator,” in addition to the presence of
hornets’ nests and a school bus apparently being used a residence. Id. at 340.
With that factual backdrop, this court referred to both the common law standard
for public nuisances and the pertinent municipal ordinance. See id. Under the
former standard, “Property constitutes a public nuisance if it causes substantial

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‘hurt, inconvenience, or damage to the public generally, or such part of the public
as necessarily comes in contact with it in the exercise of a public or common
right.’” Id. (quoting State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 517-18,
311 N.W.2d 650 (1981)). We summarized the ordinance defining public
nuisances as being similar to this standard through its classification of the
following as public nuisances: “premises which are blighted due to the
accumulation of junk or other unsightly debris and other items which depreciate
property values and jeopardize or are detrimental to the health, safety, morals or
welfare of the people of the Town.” Id.

¶32 Neither party cites Sharpley, and the evidence and the ordinance at
issue in Sharpley vary in some ways from the evidence and ordinance at issue
here. Nonetheless, the Strangfelds’ conclusory assertions do not begin to address
the principles in Sharpley, which are necessarily implicated by the circuit court’s
key conclusion in the December 2020 order. Nor do the Strangfelds attempt to
show how those principles could not apply here. They do not dispute that the
circuit court had a sufficient record to find that they were in violation of the
Town’s ordinance. They merely gesture at the concept that this was an
insufficient basis to establish a public nuisance that merited appointment of a
receiver, at best making selective reference to the evidence presented to the circuit
court. This is not sufficient, given the fact that the record included testimony
regarding photographs of the property that depicted piles of various objects. The
Strangfelds do not seriously dispute that photographs appear to show piles that
could fit within one or more of the definitions of “Litter,” “Trash,” or “Rubbish”
as those terms are used in the ordinance.11 Similarly, the Strangfelds did not
11
The ordinance provides in pertinent part:
(continued)

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dispute at trial that these conditions lasted over a sustained period of time and that
the Town had in earlier years issued citations to the Strangfelds for alleged
violations of the ordinance that is a predecessor to the ordinance at issue in this
case.

¶33 In scattered references throughout their briefing, the Strangfelds take
issue with the circuit court defining the scope of the nuisance on their property, in
part, according to what Town representatives “feel constitutes a nuisance.”12
However, the closest the Strangfelds come to developing an argument that this
statement by the court created grounds for reversal is to make the conclusory
assertion that the court’s approach was a “far cry from the public nuisance
standard of WIS. STAT. § 823.23.” The Strangfelds do not attempt to analyze the
court’s reference in the proper context of the court’s other rulings. Nor do they
address the evidence presented to the court concerning the scope of the alleged
nuisances on the property or concerning the proper procedure for defining the

“Litter” as used in this ordinance includes, but is not limited to,
trash and wastepaper lying scattered about; and an untidy
accumulation of objects of any kind.

“Trash” as used in this ordinance includes, but is not limited to,
something or object(s) worth little or nothing or something or
object(s) in a crumbled, broken or inoperable condition.

“Rubbish” as used in this ordinance includes, but is not limited
to, waste materials and refuse of every character and kind
collected and/or accumulated.

See TOWN OF SARATOGA, WIS., ORDINANCES No. 12-2-15A, § 2(D) (bulleting omitted).
12
We do not consider additional purported statements of the circuit court referenced by
the Strangfelds, which were allegedly made during the hearing at which the court decided to
appoint a receiver, because there is no accompanying citation to the record and it appears that the
referenced transcript is not included in the record. “We are limited to matters in the record, and
will not consider any materials in an appendix that are not in the record.” Roy v. St. Lukes Med.
Ctr., 2007 WI App 218, ¶10 n.1, 305 Wis. 2d 658, 741 N.W.2d 256 (citation omitted).

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No. 2021AP1592

scope of a nuisance. Accordingly, we reject their argument on this point as
undeveloped. See Pettit, 171 Wis. 2d at 646-47.

IV. Agricultural Use

¶34 The Strangfelds argue that the circuit court failed to properly apply
WIS. STAT. § 823.08 in light of evidence presented through testimony at trial
regarding the Strangfelds’ agricultural practices on their land. Under § 823.08,
activities meeting the definitions of “agricultural practice” or “agricultural use”
“may not be found to be a nuisance” if certain conditions are met, including that
the agricultural use or practice “does not present a substantial threat to public
health or safety.” Sec. 823.08(2)-(3). We reject this argument as undeveloped.
The Strangfelds fail to come to grips with the fact that the December 2020 order
excluded “anything related to agricultural use” from its definition of the scope of
the nuisances to be abated on their property. Thus, the Strangfelds fail to take into
account that the court explicitly gave them the benefit of § 823.08(3)(a)’s
protection—in effect determining that any condition related to an agricultural use
did not constitute a nuisance.

¶35 The Strangfelds may mean to argue that the circuit court clearly
erred in finding that less than all of the conditions depicted in photographic
evidence presented by the Town were “related to agricultural use.” However, the
Strangfelds fail to support such an argument. They merely assert without citation
to the record that Patricia Strangfeld’s testimony established that “almost all” of
the Town’s photographs depicted items related to agricultural uses and make
selective reference to some of photographs presented at trial. But it is clear from
the record that, while the circuit court credited some aspects of her testimony, it
did not do so to the degree urged by the Strangfelds on appeal. See Xiong v.

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No. 2021AP1592

Vang, 2017 WI App 73, ¶32, 378 Wis. 2d 636, 904 N.W.2d 814 (“‘When the
circuit court acts as the finder of fact, it is the ultimate arbiter of the credibility of
the witnesses and the weight to be given to their testimony.’” (quoted source and
alteration brackets omitted)). The Strangfelds do not begin to demonstrate that the
court could not reasonably interpret her testimony as not explaining or only
partially explaining some of the conditions reflected in the photographic evidence
presented by the Town.13

¶36 The Strangfelds briefly request that they be awarded their “litigation
expenses” for defending the agricultural use of their property, but the argument is
undeveloped. See WIS. STAT. § 823.08(4)(b) (the circuit court “shall award
litigation expenses to the defendant in any action in which an agricultural use or
agricultural practice is alleged to be a nuisance if the agricultural use or
agricultural practice is not found to be a nuisance”). The Strangfelds’ failure to
address the circuit court’s rulings regarding the scope of the nuisance would leave
it to this court to develop their argument in favor of awarding litigation expenses.
See Industrial Risk Ins. v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25,
318 Wis. 2d 148, 769 N.W.2d 82 (court of appeals does not abandon its neutrality
to develop arguments). At a minimum, any argument that the Strangfelds intend

13
This same failure to show clear error in fact finding by the circuit court undermines the
Strangfelds’ efforts to invoke the doctrines of vested rights and nonconforming uses. The
Strangfelds contend that their agricultural use of their property is “vested,” by which they
apparently mean their agricultural activities are legally protected nonconforming uses to the
extent that they conflict with applicable zoning restrictions. However, the Strangfelds fail to
show that the court was required to find that whatever vested agricultural use rights they
possessed extended to all of the conditions reflected in the Town’s photographs. Moreover, the
vested nature of their agricultural activities has no bearing on whether conditions on their
property constitute public nuisances. See Sharpley, 212 Wis. 2d at 338 (“‘neither the legitimacy
of the business nor the length of time it has been in existence is controlling in determining
whether a public nuisance exists because a public nuisance can always be abated’” (quoted source
omitted)).

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No. 2021AP1592

to make along these lines would need to apply § 823.08(4) to the circuit court’s
specific conclusions. They fail to do this.

CONCLUSION

¶37 For all of these reasons, we affirm the circuit court’s order
appointing a receiver.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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