Graves v. City of Joplin

• Court: Missouri Court of Appeals
• Writing for the Court: Prewitt, J., and Rahmeyer; Phillip R. Garrison
• Citation: Graves v. City of Joplin, 48 S.W.3d 121 (Mo. App. 2001)
• Decision Date: 27 June 2001
• Parties: (Mo.App. S.D. 2001) David Graves, Appellant v. City of Joplin, the Building Board of Appeals for the City of Joplin, Missouri, Respondent. 23915 0

48 S.W.3d 121 (Mo.App. S.D. 2001)

David Graves, Appellant v. City of Joplin, the Building Board of Appeals for the City of Joplin, Missouri, Respondent.

23915

Missouri Court of Appeals Southern District

06/27/2001

Appeal From: Circuit Court of Jasper County, Hon. Jon Dermott

Counsel for Appellant: Thomas L. Williams

Counsel for Respondent: Daniel B. Bagley

Opinion Summary: None

Prewitt, J., and Rahmeyer, J., concur.

Phillip R. Garrison, Judge

David Graves ("Appellant") appeals from a decision of the trial court, affirming an order of the Building Board of Appeals of the City of Joplin ("the Board"), which ordered the demolition of Appellant's property located at 1049 Main Street, Joplin, Missouri.

On October 6, 1999, John Bailey ("Bailey"), a building inspector for the City of Joplin, Missouri ("the City"), sent a certified letter to American Investment ("American") concerning "your property at 1049 Main Street" and reciting a legal description. The letter was a notice forbidding occupancy and stated, "if in the opinion of the Building Inspector, the structure cannot feasibly be reconditioned," a building permit may not issue meaning that demolition would be required. A "Finding of Fact Hearing" was held on October 22, 1999. At the hearing, Steven Moore ("Moore"), a building inspector for the City, testified as to the general dilapidated character of the building, and that the City's title search indicated the building was owned by American, but that he had also encountered a couple who claimed to own the building. Moore testified that after this couple became aware of the upcoming hearing they took the action of boarding up the building. The couple was subsequently determined by the City to be Appellant and his wife. The minutes of the hearing showed that neither American nor Appellant was present to address the Board, and that the Board voted to hold a demolition hearing at their next meeting on November 19, 1999. A legal notice was published in the Joplin Globe that stated, "It is the opinion of the Building Department that the deterioration of this structure due to neglect, rot, and vandalism is so severe that it would be economically unfeasible to rehabilitate." The notice indicated that a "demolition hearing" would be held on November 19, 1999.

At the November 19, 1999, meeting of the Board, Appellant appeared and claimed ownership of the building and produced title work from Hawkins Title Company showing a different legal description and ownership in his name. He stated that he planned to renovate the building and open a restaurant. Bailey informed Appellant that he would need a set of developmental plans from a licensed architect or engineer in order to obtain a necessary building permit, and that he would need to talk with someone from the zoning and planning commission to find out how many parking spaces he would need in order to be in compliance with the building code. In the presence of Appellant, the Board continued the matter to January 28, 2000, for a progress report and a demolition hearing. Notice of the continuance was also mailed to both Appellant and American.

Before the next meeting, Appellant called Assistant City Attorney Daniel Bagley ("Bagley") to ask him what could be done to prevent the building from being demolished. Bagely responded that he needed to do "as much as he could regarding the refurnishing [sic] the building and bringing it back up to being a building that's not a dangerous condition. He needed to do as much as he possibly could from now until the time of the next Board meeting."

At the January 28, 2000, meeting, the Board called for a demolition hearing upon being informed by Moore that the building department had not received any contact from Appellant following last month's meeting. At the hearing, the City presented Moore as its witness, who testified that from his inspections the building was in violation of thirteen different subsections of the "dangerous building" section of the Joplin Code. He specifically pointed out that the building had serious substandard wiring, that the plumbing, heating, and air systems were non-existent, and that the building's eastern wall and easternmost portion of the southern wall were also non-existent. The City also presented the Board with pictures of the building, which the Board accepted as evidence of the building's dangerous condition.

Upon examination of the evidence presented by the City, the Board found the building constituted a dangerous building and ordered it demolished. Appellant arrived at the hearing after the Board had rendered its decision. After being informed that the building was going to be demolished, Appellant requested a reconsideration of the matter and stated that he had a new plan for the building, which was to lease it to someone to operate an antique shop. The Board moved that the decision to demolish the structure would stand, but the execution of the order to demolish would be stayed until the next meeting, so as to allow Appellant the opportunity to have professional architectural site plans developed and otherwise work with the City in order to convince the Board that sufficient progress was being made toward rehabilitating the building.

At the Board's meeting on February 25, 2000, it was determined that Appellant was the owner of the property. The Board noted that Appellant had failed to have architectural site plans developed or have any contact with the City. Appellant did bring an architect to the meeting, who stated that he had been hired to perform a feasibility study to determine whether the building could be salvaged. However, the Board was not persuaded that the rate of progress by Appellant was sufficient to warrant delaying execution of the demolition any longer, and moved that the ordered demolition be executed. A notice was sent to Appellant on February 28, 2000, stating that the Board had declared the building to be dangerous and ordered it demolished. On September 11, 2000, the trial court affirmed the Board's demolition order. Appellant appeals.

On appeal from an administrative agency decision in a contested case, we review the findings of fact and decision of the agency, not the judgment of the circuit court. Morton v. Missouri Air Conservation Comm'n, 944 S.W.2d 231, 236 (Mo.App. S.D. 1997). In reviewing an administrative agency decision, the evidence is viewed in its entirety together with all legitimate inferences therefrom, in a light most favorable to the agency. Jones v. City of Jennings, 23 S.W.3d 801, 803 (Mo.App. E.D. 2000). Our review is controlled by Section 536.140.2, RSMo 2000, which provides:

The inquiry may extend to a determination of whether the action of the agency (1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

See also Jones, 23 S.W.3d at 803; Scott Tie v. Missouri Clean Water Comm'n, 972 S.W.2d 580, 584 (Mo.App. S.D. 1998).

Appellant presents three points relied on in this appeal. For purposes of clarity, we discuss them in an order other than that presented in Appellant's brief.

In one of his points, Appellant contends that the Board erred in ordering the...