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.