CITY OF KALISPELL v SCHAFFER
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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: Decided: Filed: ,Nfl ? FgbS May 3, 1985 June 7, 1985 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, Schaffer, d/b/a Schaffer 1980, the appellant, Darold R. 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 official October for the 14, 1982, Alan City of J. Petersen, a building 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 were arguments 27, 1984, submitted 10 months a f t e r t h e e v i d e n c e and to the court, appellant 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 . filed a 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 thereto, design providing changes, fill dirt, work on financing excavation, and related 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) 1983 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 , 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 We 180 d a y s beginning on September 31, [sic] 1981. 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 "suspend" "Temporarily debarred, as: h e l d i n abeyance. The substantial both threshold in t i m e the The C i t y i n s p e c t o r from December the Dictionary inactive, defines inoperative; " concerns t h e p o i n t run. Unabridged 26, question in this matter 180 d a y p e r i o d commenced t o found no a c t i v i t y on t h e p r o p e r t y 1980 u n t i l November amended complaint filed defendant with a violation of the by 18, 1981. However, t h e City charging t h e 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 developer made problem. In an specifications, was not until arrangements February, to resolve effort to comply with appellant found 1982, it the 1981 and the sanitation the department's necessary financing from Farmers Home Administration. October, that to secure Commencing in 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. disagree. We Architectural plans are an integral part of a construction project. This is further illustrated by the fact that when the Department project of Health, became design subject to changes review by resulted. the 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 interest financing. construction w i l l being revised. plans in Reasonableness c e a s e whi1.e Further, the the order to secure dictates that architectural low active plans I n t e r n a t i o n a 1 Conference are 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 a r c h i t e c t u r a 1, include: and thus 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 ~t a l s o i n c l - u d e s t h e l i s t e d below. 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 City, it clearly architectural is not adopted illustrates that a s a n o r d i n a n c e by t h e the Code contemplates 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. P. 2d 44. code Solberg v. Newburg (0r.App. 1982), 641 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 similar Appellants City of to in section their 303 ( d ) , attempt to construction a c t i v i t y i n excess of Uniform seek Building financing 180 d a y s . Code. ceased 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 We 48. find the Solberg decision distinguishable from the case at bar. clearly 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. necessary to prevent the The removal of snow was 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 clearly erroneous. find the District Court's ruling We hold that appellant did not suspend work on the building within the ordinary accepted meaning of the term suspended. architectural shoveling and The activities of appellant including design removal changes, of providing snow from the fill dirt, and 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. I C. specially Gulbrandson s p e c i a l l y c o n c u r r i n g . 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 . Gulbrandson. Justice
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