Atkins v. Department of Bldg. Regulations, City of Springfield, 61346
| Decision Date | 08 April 1980 |
| Docket Number | No. 1,No. 61346,61346,1 |
| Citation | 596 S.W.2d 426 |
| Parties | Burl W. ATKINS and Pansy Atkins, Plaintiffs-Appellants, v. DEPARTMENT OF BUILDING REGULATIONS, CITY OF SPRINGFIELD, Defendant-Respondent |
| Court | Missouri Supreme Court |
Gary T. Nelms, Springfield, for plaintiffs-appellants.
Howard C. Wright, Jr., City Atty., and Lyndel H. Porterfield, Asst. City Atty., Springfield, for defendant-respondent.
ROBERT R. WELBORN, Commissioner.
Proceeding, for review by injunction of decision of administrative agency. Department of Building Regulations of City of Springfield issued an order to Burl W. Atkins and Pansy Atkins to repair a dwelling house owned by them so that it would not constitute a public nuisance under city ordinance. When repairs were not undertaken to satisfaction of the Director of the Department, property owners were notified that Department intended to demolish the structure. Owners filed this action to enjoin Department from following that remedy. Trial court issued temporary injunction, but upon Department's motion to dismiss, treated as motion for summary judgment, court found against plaintiffs and dissolved temporary injunction and dismissed petition. Plaintiffs appeal. This Court issue stay pending appeal.
Pursuant to the authority granted by Sections 67.400 67.450, RSMo 1978, the City of Springfield in 1969 enacted a "Dangerous Buildings Code." §§ 8-100 8-113, Springfield City Code. Section 8-101 enumerates twelve conditions which would constitute a building a public nuisance. Section 8-102 provides for inspectors of dangerous buildings to inspect buildings believed to be in a condition prescribed by Section 8-101. In case a building had any of those conditions, the inspector is to determine "whether or not it reasonably appears there is immediate danger to the health, safety or welfare of any person because of such condition, * * *." If the inspector so finds, he notifies the director of public works of his finding and if the director concurs, a notice is posted on the structure to the effect that it has been found to be a public nuisance.
Section 8-103 requires the inspector to notify the owner of the determination that the property has been declared a public nuisance, the conditions which under Section 8-101 call for such determination, and the action required for abatement of the nuisance, including "ordering the building or structure to be vacated if such be the case, reconditioned, or removed, giving a reasonable time for commencement of the work, and requiring the work to proceed without unnecessary delay."
Section 8-105 provides that standards for determining the action required to alleviate a public nuisance as follows:
Section 8-106 provides that, upon failure to comply with the notice to abate the nuisance, the director of public works, upon notice to the parties, shall have a full hearing on the following issues:
Section 8-107 requires the director, within 30 days from the hearing, to make a conclusion of law as to whether the building is a public nuisance and detrimental to the health, safety or welfare of residents of the city. He is required to find as a matter of fact the conditions which constitute the nuisance. "If it is found that the building or structure is a public nuisance, further findings shall be made as to whether or not the procedures required by this article have been substantially met and complied with, and whether or not the abatement order of the inspector of dangerous buildings to abate the nuisance was reasonable in its terms and conditions and within the standards of this article."
Section 8-108 provides that, upon making such findings, the director shall issue an order directing that the building be completed, repaired or demolished, as the case may be, "within the standards of this article." The order is to be "delivered or mailed" to each party to the proceeding. It must specify a reasonable time, not less than 30 days from the date of its issuance, for compliance with the order and provide that in the event of noncompliance, the director will cause the work to be done by either city employees or by contractors employed for the purpose.
Sections 8-109 and 8-110 relate to issuance of special tax bills to pay for work done by the city or its contractors.
Section 8-111 gives the owner and others interested in the property the right of appeal from the order of the director to the Circuit Court of Greene County "as established in Article 536 of the Revised Statutes of Missouri."
Burl W. and Pansy Atkins, husband and wife, owned an unoccupied residence at 639 South New in Springfield. The Atkinses bought the house in 1933 and occupied it as their residence for several years. They had moved out of the house at some unstated time and it had since remained vacant.
At sometime not shown by the transcript in this Court, an inspector of dangerous buildings inspected the Atkins property and concluded that it was a dangerous building and a public nuisance under the Dangerous Buildings Code. Notice of that determination was served on the Atkinses, but they failed to take the steps required to correct the condition. On November 19, 1976, Department Director notified Atkins that a hearing would be held on December 14, 1976, in accordance with Section 8-106.
A hearing was held at which the Atkinses were present and represented by counsel. Following the hearing, the Director, on December 15, 1976, issued his findings and order. He found the building in violation of Section 8-101 as follows:
"(b) Damage and deterioration to floors and walls and ceiling; (c) insufficient strength of roofs and floors to be reasonably safe for purpose for which intended; (d) Those which have been substantially damaged by fire, wind or other causes; (e) Those which are uninhabited and open at door and window; (h) Those containing therein substantial accumulations of trash, garbage, or other materials susceptible to fire or constituting or providing a harboring place for vermin or other obnoxious animals or insects; (k) Those containing therein substantial accumulations of trash, garbage, or other materials susceptible to fire or constituting or providing a harboring place for vermin or other obnoxious animals or insects." (sic)
His conclusions of law included the finding that the building was a public nuisance and detrimental to the health, safety and welfare of the citizens; that the procedures required by the Dangerous Buildings Code had been substantially met and complied with and that the abatement order of the inspector was reasonable and within the standards of the Code.
The Director ordered the owner to abate the nuisance and to commence repairing the building or demolish it, the repair or demolition to commence within 30 days of the date of the order. The order further provided that, if the owner failed to commence repairs or demolition within such period, the city would demolish the building. The order was made effective December 20, 1976, and the owners were notified that appeal must be filed within 30 days of the effective date of the order.
Copies of the order were mailed by certified mail to each of the Atkins on December 15, 1976. On January 4, 1977, the post office returned those letters, marked "unclaimed." On January 31, 1977, a copy of the order was mailed to the attorney for the Atkinses and delivered February 1, 1977.
On May 24, 1977, the Director wrote Atkins, stating that a "visual inspection" showed that the order of December 15, 1976 had not been complied with. The letter stated that bids would be solicited by the city for demolition of the building on or after June 8, 1977.
On June 22, 1977, the Atkinses filed their petition in the Greene County Circuit Court to enjoin action by the Department. It sought review of the May 24 order under Section 536.150, RSMo, as in a noncontested case. It alleged that the determination that plaintiffs had not complied with the order of December 15, 1976, and the proposed demolition of the building were unconstitutional, arbitrary and an abuse...
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