Appeals court reverses ruling on dilapidated carwash demolition

David Yates Jan. 3, 2008, 5:17am

Justices on the Ninth Court of Appeals reversed and remanded a lower court's ruling that the court did not have jurisdiction to stop the city of Beaumont from demolishing a carwash on Calder.

On Oct. 5, 2006, Gene Bates filed a request for a restraining order against the city in Jefferson County District Court after he learned officials indented to destroy his Hurricane Rita-ravaged carwash, located at 2510 Calder.

The city contended that the carwash was a fire hazard and dilapidated. However, Bates argued his carwash was safe, and that he had been continuously making improvements on the structure since Hurricane Rita devastated the Golden Triangle area in September 2005.

The city filed a plea and argued that the trial court lacked jurisdiction because Bates did not file suit within 30 days of the demolition notice.

The trial court conducted an evidentiary hearing on Bates' application for a restraining order. During the hearing, the city presented a letter that it had sent Bates, which informed him that unless he substantially completed a work program, the city would demolish the property without further notice. The letter was marked "unclaimed" and returned to the city after three delivery attempts, according to court documents.

"The city subsequently promulgated ordinance number 06-026, in which it declared that Bates' property was a public nuisance and that the building 'for want of repairs, or by reason of age or dilapidated condition, [is] likely to cause or promote fires that would endanger persons or property,'" Chief Justice McKeithen wrote in the appellate court's opinion. "The ordinance also ordered Bates to demolish the building within 10 days or execute a work program, or the building would be demolished without further notice."

Bates says he never received the letter, and only discovered his car wash was slated for demolition through a notice left on the door of his property.

When he read the notice, Bates contacted the city, and said it was then that he learned that the city had attempted to send him a notification letter.

Bates testified that he had received the city's previous letter regarding its intention to conduct a hearing on the property at a meeting of the Beaumont City Council. Bates did attend and speak at the city council meeting. As a result of the meeting, Bates repaired a leak on the roof and secured the building with plywood.

After the court's judgment, Bates submitted a motion for a new trial. When that failed, he appealed his case.

In his appeal, Bates argued the trial court erred in determining that it lacked subject matter jurisdiction.

"In this case, the evidence before the court demonstrated that the city sent its first notification letter on April 28, 2006, via certified mail to Bates' correct residential mailing address, where Bates had received a previous certified letter approximately three weeks earlier," Justice McKeithen wrote.

"The city argues that this letter was its final notice to Bates, and that the 30-day deadline began to run from that date. We disagree."

Following the April 25, 2006, council meeting, Bates began repairs on the building. The city apparently treated this as the equivalent of Bates enrolling in a work program to bring the building to code. After re-inspecting the building, the city sent a second letter, this one dated Sept. 25, 2006, informing Bates that the repairs were insufficient, and that the city would proceed with the demolition of the building.

The appeals court determined that the second letter was the notification to Bates that a final decision on the property had been reached by the city.

"It was from that date that Bates' 30- day deadline began to run," McKeithen wrote. "Bates filed suit on Oct. 5, 2006, well within 30 days from the date of the letter informing Bates of the city's final decision. Accordingly, the trial court erred in determining that it lacked subject matter jurisdiction of the case."

"The judgment of the trial court is reversed, and the cause remanded for further proceedings consistent with this opinion," wrote Justice McKeithen.

The case was submitted on Sept. 27, 2007.

Bates is represented by Beaumont attorney Susan Oliver.

Trial Case No. E177-860. Appeals Case No. 09-06-455 CV.

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