City of Kalispell v. Schaffer

Opinion

No. 84-312

IN THE SUPREME COURT OF THE STATE OF MOIJTANA 1985

THE CITY OF KALISPELL, Plaintiff and Respondent,

DAROLD SCHAFFER, d/b/a SCHAFFER & SONS, Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard DeJana, Kalispell, Montana

For Respondent :

Glen Neier, City Attorney, Kalispell, Montana

Submitted on Briefs: May 3, 1985

Decided: June 7, 1985

Filed: ,Nfl ? FgbS

Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from the District Court of the Eleventh Judicial District of the State of Montana, in and for the County of Flathead in which the defendant was found guilty of a "Violation of a Lawfully Issued Stop Work Order," a misdemeanor, as specified in section 5-4.2 (d), Kalispell

City Code.

On November 17, 1980, the appellant, Darold R.

Schaffer, d/b/a Schaffer & Sons, was issued a building permit for the construction of a residence. The building inspector

observed and logged the progress of the building for which the permit had been issued. On December 26, 1980, the inspector noted the foundation had been erected. Thereafter, the inspector observed the construction was suspended from December 26, 1980 up to and including November 18, 1981.

On October 14, 1982, Alan J. Petersen, a building official for the City of Kalispell, sent a letter to appellant informing him that the building permit had expired per section 303 (d) of the Uniform Building Code, 1979, since no activity had been observed since January, 1981. Several days later, Petersen observed that construction had resumed on the property. On December 3, 1982, a "Stop Work Order" was delivered to appellant ordering him to cease construction until another permit was obtained. On December 7, 1982, appellant was observed working on the property. The building official filed a complaint in the City Court of Kalispell alleging a violation of a lawfully issued Stop Work Order.

The matter came to trial in city court on December 20, 1982, at which time appellant was found guilty, and judgment and sentence were rendered. On appeal to the District Court, the parties filed a stipulation and order setting forth

a g r e e d f a c t s , c o n t e n t i o n s , a b r i e f i n g s c h e d u l e , and w a i v e r o f

jury t r i a l .

O April n 27, 1984, 10 months a f t e r t h e e v i d e n c e and

arguments were submitted to the court, appellant filed a

motion t o d i s m i s s f o r l a c k o f speedy t r i a l . The m o t i o n was

d e n i e d and o n t h e same d a y t h e D i s t r i c t C o u r t a f f i r m e d t h e

judgment and s e n t e n c e p r e v i o u s l y e n t e r e d a g a i n s t a p p e l l a n t by

the c i t y court.

The f o l l o w i n g i s s u e s a r e p r e s e n t e d on a p p e a l :

(1) Whether t h e D i s t r i c t C o u r t e r r e d i n f i n d i n g t h a t

architectural design changes, work on financing related

thereto, providing fill dirt, excavation, and snow removal

f a i l e d t o c o n s t i t u t e work a u t h o r i z e d by t h e b u i l d i n g p e r m i t .

(2) Whether t h e D i s t r i c t C o u r t ' s d e l a y from J u n e 3 ,

1983 until April 27, 1984 in issuing an order violated

a p p e l l a n t ' s r i g h t t o a speedy t r i a l .

The a p p e l l a n t m a i n t a i n s t h a t t h e D i s t r i c t C o u r t e r r e d

by a f f i r m i n g t h e judgment o f t h e c i t y c o u r t which r u l e d t h a t

certain building activities did not constitute sufficient

a c t i v i t y u n d e r s e c t i o n 3 0 3 ( d ) , Uniform B u i l d i n g Code.

The C i t y ' s p o s i t i o n i s t h a t t h e a c t i v i t i e s c l a i m e d t o

have been engaged i n by a p p e l l a n t w e r e n o t a c t i v i t i e s which

required a building permit. A f t e r t h e p e r m i t was i s s u e d and

t h e foundation constructed, t h e City submits, t h e b u i l d i n g o r

work a u t h o r i z e d by t h e p e r m i t was s u s p e n d e d f o r a p e r i o d o f

at least 180 d a y s beginning on September 31, [sic] 1981.

We find t h a t a l l building a c t i v i t y within t h e City of

K a l i s p e l l i s g o v e r n e d by t h e Uniform B u i l d i n g Code (1979 Ed.)

a d o p t e d by t h e m u n i c i p a l i t y p u r s u a n t t o O r d i n a n c e 939.

Section 303 ( d ) , Uniform Building Code, in pertinent

p a r t provides:

" ( d ) E x p i r a t i o n . Every p e r m i t i s s u e d by the building official under the p r o v i s i o n s o f t h i s Code s h a l l e x p i r e by l i m i t a t i o n and become n u l l and v o i d i f t h e b u i l d i n g o r work a u t h o r i z e d b y s u c h p e r m i t i s n o t commenced w i t h i n 180 d a y s from t h e d a t e o f s u c h p e r m i t , o r i f t h e building o r work authorized by such p e r m i t i s s u s p e n d e d o r abandoned a t any t i m e a f t e r t h e work i s commenced f o r a p e r i o d o f 180 d a y s . B e f o r e s u c h work c a n b e recommenced, a new p e r m i t s h a l l b e f i r s t o b t a i n e d s o t o d o , and t h e f e e , therefore, shall be one-half of the amount r e q u i r e d f o r a new p e r m i t f o r s u c h work, p r o v i d e d no c h a n g e s h a v e b e e n made o r w i l l b e made i n t h e o r i g i n a l p l a n s and specifications for such work, and provided f u r t h e r t h a t such suspension o r abandonment has not exceeded one year ...

The C i t y c o n t e n d s t h a t a p p e l l a n t d i d n o t abandon b u t m e r e l y

s u s p e n d e d c o n s t r u c t i o n f o r a p e r i o d e x c e e d i n g 180 d a y s . The

t e r m " s u s p e n d " i s n o t d e f i n e d by t h e p r o v i s i o n s t o t h e Code.

S e c t i o n 401 o f t h e Uniform B u i l d i n g Code (1979 Ed.) states:

"Where t e r m s a r e n o t d e f i n e d , t h e y s h a l l have t h e i r o r d i n a r y a c c e p t e d meanings w i t h i n t h e c o n t e x t which t h e y a r e u s e d . Webster' s Third New Internationa1 Dictionary of the English Language, Unabridged, Copyright 1961, shall be considered a s providing o r d i n a r y accepted meanings."

Accordingly, Websterfs Unabridged Dictionary defines

"suspend" as: "Temporarily debarred, inactive, inoperative;

h e l d i n abeyance. "

The substantial threshold question in this matter

concerns t h e p o i n t in t i m e the 180 d a y p e r i o d commenced t o

run. The C i t y i n s p e c t o r found no a c t i v i t y on t h e p r o p e r t y

from December 26, 1980 u n t i l November 18, 1981. However,

both the amended complaint filed by t h e City charging t h e

defendant with a violation of the S t o p Work O r d e r and t h e findings of fact by the District Court state that the building or work authorized by said permit had been suspended after the commencement of work for 180 days, beginning on September 31, [sic] 1981 and ending April 29, 1982. Therefore, the period from September 31, [sic] 1981 through April 29, 1982 will be the time frame examined.

The appellant maintains the following activity precludes a finding of abandonded or suspended activity on the construction project:

(i) From September to October of 1981, appellant hauled multi-fill dirt on to the premises.

(ii) In January, 1982, snow was removed from the foundation to prevent buckling in an effort to preserve the building.

(iii) In June of 1981, and continuing through August of 1981, the State Department of Health was investigating the

subdivision in which the property was located. The department found that the lot did not comply with the health requirements and was therefore threatening to withdraw the approva 1. It was not until February, 1982, that the developer made arrangements to resolve the sanitation

problem. In an effort to comply with the department's specifications, appellant found it necessary to secure financing from Farmers Home Administration. Commencing in October, 1981 and continuing through January, 1982, the appellant revised architectural designs so as to qualify for the Farmers Home Administration Loan.

The City argues that the Uniform Building Code does not require a building permit for the design of the building. We disagree. Architectural plans are an integral part of a construction project. This is further illustrated by the fact that when the project became subject to review by the

Department of Health, design changes resulted. Design

c h a n g e s a r e a normal o c c u r r e n c e i n t h e c o n s t r u c t i o n i n d u s t r y .

Moreover, i n o r d e r t o q u a l i f y f o r f i n a n c i n g , r e d e s i g n o f t h e

p r o j e c t was necessary. Increasingly, due t o the economic

plight of t h e construction industry, builders w i l l r e s o r t t o

redesign of architectural plans in order to secure low

interest financing. Reasonableness dictates that active

construction w i l l c e a s e whi1.e the architectural plans are

being revised. Further, the I n t e r n a t i o n a 1 Conference of

Building O f f i c e r s p u b l i s h a "Building V a l u a t i o n Data" g u i d e

f o r d e t e r m i n i n g t h e a v e r a g e c o s t o f "most b u i l d i n g s " which i s

used to determine t h e building permit fee. The guide in

pertinent part states:

"The u n i t - c o s t s a r e i n t e n d e d t o comply w i t h t h e d e f i n i t i o n o f ' v a l u a t i o n ' and s e c t i o n 423 o f t h e Uniform B u i l d i n q Code and thus include: a r c h i t e c t u r a 1, s t r u c t u r a l , and e l e c t r i c a l , plumbing and m e c h a n i c a l work, e x c e p t a s s p e c i f i c a l l y l i s t e d below. ~t a l s o i n c l - u d e s t h e c o n t r a c t o r ' s p r o f i t which s h o u l d n o t b e omitted i f he has a f i n a n c i a l i n t e r e s t i n the project." (Emphasis a d d e d . )

Although t h i s guide is not adopted a s a n o r d i n a n c e by t h e

City, it clearly illustrates that the Code contemplates

architectural design changes i n t h e course o f c o n s t r u c t i o n .

The C i t y p r i m a r i l y r e l i e s on an Oregon C o u r t o f A p p e a l s

decision. Solberg v. City of Newburg (0r.App. 1982), 641

P. 2d 44. I n S o l b e r q , t h e C i t y o f Newburg e n a c t e d a b u i l d i n g

code similar to section 303 ( d ) , Uniform Building Code.

Appellants in their attempt to seek financing ceased

construction a c t i v i t y i n excess of 180 d a y s . The C o u r t o f

A p p e a l s c o n c l u d e d t h a t t h e m e r e p r o c u r e m e n t o f money d i d n o t

c o n s t i t u t e work a u t h o r i z e d by t h e p e r m i t . Solberg, supra, 641 P.2d at 48. We find the Solberg decision clearly distinguishable from the case at bar. In the present matter, appellant's efforts to secure financing for the project was not even alleged by appellant to constitute work activity within the purview of the building permit. Under these facts we hold that changes of design constitute sufficient activity under section 303 (d) of the Uniform Building Code.

Similarly, we find the removal of snow from the foundation constituted work within the meaning of section 303(d) of the Uniform Building Code. The removal of snow was necessary to prevent the foundation from buckling. Appellant's practice was an effort to preserve the structure.

We find the final activity, the hauling of multi-fill dirt to the site, constituted work within the provision of section 303(d), Uniform Building Code. We find this work was necessary for the completion of the building.

The District Court by trial de novo affirmed the city court conviction. We find the District Court's ruling clearly erroneous. We hold that appellant did not suspend work on the building within the ordinary accepted meaning of the term suspended. The activities of appellant including architectural design changes, providing fill dirt, and shoveling and removal of snow from the foundation did constitute sufficient action under section 303(d), Uniform Building Code, to prevent the lapse of the building permit.

The remaining speedy trial issue will not be discussed because we find the judgment should be reversed on the grounds that the work conducted was in fact work within the contemplation of the building code. However, we find the District Court's failure to render a decision on the matter for 10 months unconscionable. The appellant filed a motion to dismiss for lack of a speedy trial on April 27, 1984, nine months from the submission of the case to the District Court. The District Court rendered an ultimate ruling on the case, on the same day the appellant's motion to dismiss was denied.

A ruling on both matters occurred after a ten-month delay alleged by the court to be due to an overcrowded docket.

Such conduct violates this Court's sense of fair play.

The judgment of the District Court is reversed and the cause is dismissed.

We concur:

Chief Justice

Mr. J u s t i c e L. C. Gulbrandson s p e c i a l l y c o n c u r r i n g .

I specially concur with the result expressed in the

f o r e g o i n g o p i n i o n and w i t h t h e comments s e t f o r t h t h e r e i n s o

f a r a s t h e y r e l a t e t o t h e merits o f t h e c a s e .

I do n o t concur with the comments set forth in said

opinion r e g a r d i n g t h e t i m e l i n e s s of t h e t r i a 1 judge ' s d e c i -

s i o n , a s I deem t h o s e comments t o b e

C

Mr. C h i e f J u s t i c e J. A . Turnage and M r . J u s t i c e F r e d J . Weber:

W e j o i n i n t h e s p e c i a l concurrence of M r . Justice

Gulbrandson.