                                 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.
