Begshaw v. City of Independence, MO

• Decision Date: 29 December 2000
• Citation: Begshaw v. City of Independence, MO, 41 S.W.3d 500 (Mo. App. 2000)
• Parties: (Mo.App. W.D. 2000) . Leonard Begshaw, Appellant v. The City of Independence, Missouri, Respondent WD58251 Missouri Court of Appeals Western District Handdown Date:
• Court: Missouri Court of Appeals

41 S.W.3d 500 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Leonard Begshaw, Appellant v. The City of Independence, Missouri, Respondent

WD58251

Missouri Court of Appeals Western District

Handdown Date: 12/29/2000

Appeal From: Circuit Court of Jackson County, Hon. Charles W. Kramer

Counsel for Appellant: Philip A. Klawuhn

Counsel for Respondent: Steven E. Mauer

Opinion Summary: Appellant Leonard Begshaw appeals from a decision by the Circuit Court of Jackson County to vacate a temporary restraining order which had prevented the City of Independence from enforcing a decision issued by the City Building Official ordering that a building owned by Begshaw be repaired or torn down within thirty days.

REMANDED FOR DISMISSAL.

Division holds: (1) The administrative decision rendered by the Building Official is subject to review under the Missouri Administrative Procedure Act, Chapter 536, RSMo 1994, as a contested case.

(2) Appellant failed to exhaust all administrative remedies provided by law when he chose not to request a hearing before the Board of Building and Engineering Appeals to review the Building Official's decision.

(3) Because Appellant failed to exhaust his administrative remedies, the Circuit Court lacked subject matter jurisdiction to review the Building Official's decision, and accordingly, the proceedings before the circuit court were void and the cause must be remanded for dismissal of this action.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: REMANDED FOR DISMISSAL. Smith, P.J. and Ulrich, J., concur

Opinion:

In 1989, Appellant Leonard Begshaw purchased a piece of real property located at 9500 Wilson Road in Independence, Missouri. Appellant operated a business known as Larry's Bar in the building located on that property.

On April 30,1998, City of Independence building inspectors inspected the property. Following their inspection, they notified the building manager, Rebecca Mansfield, that the occupational license for the business would expire at the end of the day. Appellant failed to renew the occupational license for the property, and the business was closed.

On July 18, 1998, the Building Official sent notice to Appellant that the building on the property was not in compliance with section 4.01.008 of the Property Maintenance Codes of the City of Independence and would need to be repaired or removed. The Building Official informed Appellant that the building would be demolished if it were not brought up to code within thirty days. Appellant made no efforts to repair the property or seek a building permit at that time.

On August 10, 1998, the City notified Appellant that a hearing was scheduled for September 14, 1998, to determine whether the building was dangerous and to assess the fate of the building pursuant to City Code section 4.01.008. Notice of that hearing was also published in the Independence Examiner on August 12, 13, and 14, 1998.

On September 14, 1998, a hearing was conducted involving the Deputy Building Official, the Code Enforcement Officer, and the Assistant City Counselor. Appellant failed to attend that hearing. At that hearing, the Code Enforcement Officer reported that no work had been done to the building and that no repair permits had been issued to Appellant. Further testimony was offered indicating that the building was dilapidated and in damaged condition and was dangerous to the life and safety of any occupants and the public at large.

Following the hearing, the Deputy Building Official issued his Findings of Fact and Conclusions of Law in which he found that numerous defects had been found in the building. He found that the building was a danger to public health and safety and ordered that it must be repaired or demolished within thirty days. The Conclusions of Law further stated that if the building was not repaired or demolished within thirty days, it would be demolished by the City with the costs imposed as a lien against the property.

On October 9, 1998, Appellant was granted a 180-day building permit to make repairs to the property. Over the next eleven weeks, Appellant failed to make any repairs to the property. On December 21, 1998, the City notified Appellant of a problem with his permit and revoked the permit, but the City encouraged Appellant to apply for a new permit. On April 9, 1999, the City issued Appellant a thirty-day permit to repair the building. When that permit expired, Appellant requested an additional six months to complete the repairs. On May 11, 1999, the City informed Appellant that it would not extend the building permit and that demolition of the property was scheduled for the following day.

On May 12, 1999, Appellant filed a Petition for Review in the Circuit Court of Jackson County asking the court to review the City's decision to demolish the building. Appellant also applied for a temporary restraining order to prevent the demolition of the property. That same day, the Circuit Court entered a restraining order preventing demolition of the property pending a hearing on the matter.

On May 27, 1999, both Appellant and the City moved for directed verdict regarding the decision to demolish the building. The Circuit Court granted the City's motion for directed verdict regarding its finding that the building was dangerous. However, the Court extended the expired building permit thirty days to allow Appellant to substantially perform the requisite repairs based upon a finding that Appellant had incurred expenses in reliance on the building permits issued by the City.

When a review hearing was held on July 21, 1999, the Court granted Appellant an additional thirty days to complete repairs to the property. On September 9, 1999, the court granted a third extension of time to complete the necessary repairs.

On November 5, 1999, the Circuit Court conducted a hearing after Appellant requested a fourth extension of time in which to complete the repairs. The Court heard testimony regarding the status of those repairs. The evidence presented indicated that the necessary repairs had not been completed and that new damage had been discovered. Appellant's engineer even testified that in his opinion the building was not worth saving. After hearing the testimony, the Circuit Court denied Appellant's request for more time to complete repairs to the property.

Subsequently, Appellant filed a "Petition for Writ of Prohibition or Mandamus,...