Bickerton v Town of Preble

[*1] Bickerton v Town of Preble 2021 NY Slip Op 21137 Decided on May 17, 2021 Supreme Court, Cortland County Masler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 17, 2021
Supreme Court, Cortland County

Dianne Bickerton, Petitioner,

against

Town of Preble, W. Richard Fritz, as Code Enforcement Officer and Brian Buttner, as acting Code Enforcement Officer, Respondents.



20-863



Ms. Dianne Bickerton

Petitioner, Pro Se

[redacted]

Preble, New York 13141

Email [redacted]

POMEROY, ARMSTRONG & CASULLO, LLP

By: Michael C. Whittaker, Esq.

Attorneys for Respondents

16 Tompkins Street

Cortland, New York 13045

mwhittaker@cortlandattorneys.com
Mark G. Masler, J.

Petitioner commenced this CPLR article 78 proceeding on December 29, 2020, seeking an order compelling respondent Town of Preble to issue a building permit for construction of a proposed inground pool and enclosure at her single-family dwelling in the Town of Preble, which is located on a lot containing approximately 0.7 acres. In July 2019, she submitted an application for a building permit to construct an inground fiberglass pool with a depth of five [*2]feet to be completely enclosed by a premanufactured greenhouse-style structure measuring 20 feet by 24 feet. Petitioner plans to use the pool for therapy on a year-round basis. As proposed, the project did not meet the minimum rear-yard setback requirement, and petitioner was advised that an area variance would be required to construct the project in the proposed location. An area variance was granted in September 2019.

Petitioner reapplied for a building permit in May 2020. She was subsequently advised by code enforcement officer W. Richard Fritz and acting code enforcement officer Brian Buttner (collectively the code enforcement officers) that her application was incomplete because it did not include plans stamped by an architect or a professional engineer, as required by Education Law articles 145 and 147. Petitioner failed to submit such plans and her application was denied on August 31, 2020. Petitioner appealed the denial of her building permit application to the Zoning Board of Appeals (ZBA), which concluded that it did not have jurisdiction to consider the appeal because the code enforcement officers had denied the permit application based on their interpretation of the Education Law, a New York State statute, and not the Town of Preble Zoning Ordinance.[FN1] Petitioner then commenced this CPLR article 78 proceeding against the Town of Preble. A decision and order dated March 21, 2021, in relevant part, ordered that the code enforcement officers be joined as necessary parties to the proceeding. The code enforcement officers voluntarily appeared by filing an answer to the petition on April 7, 2021, and the caption is hereby amended accordingly.

Petitioner asserts that respondents' denial of the building permit application on the basis that it was incomplete because it did not include plans stamped by an architect or a professional engineer was arbitrary and capricious. She notes that "residence buildings" with a gross floor area of 1,500 square feet or less are exempt from the requirement that stamped plans be provided (see Education Law §§ 7209 [7] [b], 7307 [5]). She contends that the structure she proposes to construct is a residential building, because it will be constructed on her residential property for personal use, and that it is exempt from the requirement that stamped plans be provided because it contains only 480 square feet. Respondents contend that petitioner's proposed structure is not a "residence building" because it is not a dwelling in which anyone will reside and, therefore, that the permit application was properly denied based on petitioner's failure to provide plans stamped by a licensed professional.[FN2]

Although neither party uses the term accessory structure, the issue presented is whether residential accessory structures are "residence buildings," a term which is not defined in the relevant provisions of the Education Law. This is an issue of first impression invoking a question of pure statutory interpretation.

"In cases requiring the interpretation of statutes, the Court's primary consideration is to ascertain and give effect to the intention of the Legislature. The plain text of a statute is the best indicator of legislative intent and thus the proper starting place in discerning its meaning. When the statutory provision to be interpreted is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible" (Matter of Town of Irondequoit v County of Monroe, 36 NY3d 177, 182 [2020] [internal quotation marks and citations omitted]).

The Education Law provides, in relevant part, that "[n]o official of this state, or of any city, county, town or village therein, charged with the enforcement of laws, ordinances or regulations shall accept or approve" any plans or specifications that are not stamped with the seal of either an architect or a professional engineer who is licensed, registered, or authorized to practice in this state (Education Law § 7209 [1] [a], [b]; accord Education Law § 7307 [1] [a], [b]). The statute thereafter enumerates certain exceptions to this requirement, including "residence buildings of gross floor area of fifteen hundred square feet or less, not including garages, carports, porches, cellars, or uninhabitable basements or attics" (Education Law § 7209 [7] [b]; accord Education Law § 7307 [5]).

The statute does not define the term "residence buildings," but it enumerates specific uses that are not included in the gross floor area calculation of residence buildings, such as "garages, carports, porches, cellars, or uninhabitable basements or attics" (Education Law § 7209 [7] [b]; accord Education Law § 7307 [5]). By excluding such uses, the text of the statute plainly evinces a legislative intent to exempt them from the requirement that stamped plans be provided when they are incident to a residence, a conclusion that logically extends to residential accessory uses.

Moreover, the construction of the statute advanced by respondents — that residential accessory structures are not residence buildings eligible for the exception — would lead to absurd results, which are to be avoided (see McKinney's Cons Laws of NY, Book 1, Statutes § 145; Matter of Markus v Assessors of Town of Taghkanic, 24 AD3d 1066, 1067 [2005], lv denied 6 NY3d 709 [2006]). For example, under this interpretation, stamped plans would be required to construct a shed containing 145 square feet, but not to construct a house containing 1,500 square feet of habitable space.[FN3] Professional drawings would be required to construct a detached garage or carport, but not to construct garages or carports attached to an existing house that contains 1,500 square feet or less of habitable space. Likewise, under this interpretation, petitioner's standalone pool structure would require a set of stamped plans, but none would be necessary for the same structure if built as an addition to a dwelling, provided the existing dwelling and the addition contained a total gross floor area of 1,500 square feet or less (see New York State [*3]Education Department, Office of the Professions, Architecture Practice Guidelines [A] [3] http://www.op.nysed.gov/prof/arch/archguide-a3.htmNo. [last accessed May 17, 2021]). It would be illogical to conclude that stamped plans are not required for such uses when attached to a dwelling, but are required for the very same uses when detached from a dwelling.

The legislative history of the statute and its amendments provides further support for the conclusion that residential accessory structures are "residence buildings" (see McKinney's Cons Laws of NY, Book 1, Statutes §§ 96, 111, 113, 191, 192; Matter of DaimlerChrysler Corp. v Spitzer, 26 AD3d 88, 92-93 [2005], affd 7 NY3d 653 [2006]; Way v Grantling, 289 AD2d 790, 791-792 [2001]). The requirements now encoded in Education Law §§ 7209 and 7307 were enacted in 1929 "to protect the public more efficiently by preventing incompetent persons from practicing architecture without a license" (Senate Introducer's Mem in Support, Bill Jacket, L 1929, ch 572 at 1; see also Bowen v City of Schenectady, 136 Misc 307, 308 [Sup Ct, Schenectady County 1930], affd 231 AD 779 [1930]). The statute exempted any building or structure, or alterations thereto, costing $10,000 or less, a threshold selected because "beyond $10,000 problems of construction begin to arise which demand more knowledge and intelligence than the ordinary carpenter or builder possesses" (Sponsor's Mem, Bill Jacket, L 1929, ch 572 at 3). Nevertheless, under the 1929 amendment, an owner could design his or her own building plans without cost limitations and without the services of a professional (see Sponsor's Mem, Bill Jacket, L 1929, ch 572 at 4; Bowen v City of Schenectady, 136 Misc at 308).

The law was again amended in 1933 to address the concerns raised by the public officials tasked with its enforcement — i.e. code enforcement officers — who stated they lacked the means to reliably determine whether the costs of a proposed project were actually below $10,000 or if they had been artificially discounted to evade the requirement of providing stamped plans (see Sponsor's Mem, Bill Jacket, L 1933, ch 333 at 3-4). Although the $10,000 cost threshold was maintained, the statute was amended to further exempt building alterations not affecting structural safety and construction of structures containing 30,000 cubic feet or less.

The Legislature amended the law once more in 1960,[FN4] eliminating the 30,000 cubic foot threshold and adding, as relevant here, the current exemption for "residence buildings" having a habitable area of 1,500 square feet or less. The Bill Jacket accompanying the 1960 amendment indicated that these changes were intended to exempt small residence buildings based on a measurement that could be easily calculated by enforcement officers, and which would not require frequent legislative amendments to account for "economic fluctuations," such as construction costs (see Budget Report on Bills, Bill Jacket, L. 1960, ch. 1009, at 16-17).

This legislative history shows that the Legislature excepted certain projects which it determined were unlikely to threaten public safety or pose significant construction challenges that would require the services of a licensed professional — specifically exempting inexpensive projects, non-structural renovations, small "residence buildings," and uninhabitable residential [*4]spaces — to spare property owners undue cost, inconvenience, and hardship. The conclusion that residential accessory structures containing 1,500 square feet or less are exempt from the requirement that stamped plans be provided is consistent with this legislative history.

Based on the foregoing, it was an abuse of discretion to deny petitioner's building permit on the basis that petitioner did not submit drawings stamped by an architect or a professional engineer. Accordingly, the respondent code enforcement officers shall issue a building permit to petitioner for the proposed project.[FN5]

This decision constitutes the order and judgment of the court. The filing of this decision, order, and judgment, or transmittal of copies hereof, by the court shall not constitute notice of entry (see CPLR 5513).

Dated: May 17, 2021

Cortland, New York

Hon. Mark G. Masler

Supreme Court Justice

The following documents were filed with the Clerk of the County of Cortland:

Notice of petition dated December 29, 2020.

Verified petition dated December 29, 2020, with Exhibits A-H.

Letter of Dianne Bickerton dated January 20, 2021, with Exhibit I.

Answer of Town of Preble dated February 3, 2021.

Affidavit of Brian Buttner, sworn to February 11, 2021, with Exhibits A-K.

Affidavit of W. Richard Fritz, sworn to February 11, 2021.

Verified reply dated February 17, 2021, with Exhibits A-D.

Decision and Order dated March 21, 2021.

Affidavit of Brian Buttner, sworn to April 6, 2021 (erroneously dated February 6, 2021).

Answer of Richard Fritz (signed as W. Richard Fritz) and Brian Buttner dated April 7, 2021.

Amended Affidavit of Brian Buttner, sworn to April 7, 2021.

Reply dated April 14, 2021.

Decision, Order, and Judgment dated May 15, 2021. Footnotes

Footnote 1:Petitioner also appealed to the New York Department of State and was advised that the Board of Review had concluded that it lacked jurisdiction to consider her appeal because denial of the building permit was not based on an interpretation of the New York State Uniform Fire Prevention and Building Code.

Footnote 2:Respondents concede that petitioner's application was denied because it did not include professionally stamped drawings, which is the only substantive argument that was made to the ZBA and asserted in respondents' memorandum of law in this proceeding. Respondents' allegations that petitioner's application was deficient in any other respect may not be considered in this CPLR article 78 proceeding because they were not raised before the ZBA (see Matter of Calenzo v Shah, 112 AD3d 709, 712 [2013]; Matter of Fort Ridge Bldrs. v Zoning Bd. of Appeals of Town of Smithtown, 64 AD2d 704, 705 [1978]; see also Matter of Blanchfield v Town of Hoosick, 149 AD3d 1380, 1381 [2017]; Matter of Mary T. Probst Family Trust v Zoning Bd. of Appeals of Town of Horicon, 79 AD3d 1427, 1427-1428, [2010], lv denied 16 NY3d 708 [2011]).

Footnote 3:In the Town of Preble, no building permit is required for construction of sheds containing 144 square feet or less (see Town of Preble Zoning Ordinance § 301 [B] [1]).

Footnote 4:The statute was last amended in 1971, when the Legislature recodified the Education Law, however, no changes were made to the relevant exception for residence buildings. At the time, the Legislature considered, but rejected, inserting the modifier "single family" before "residence buildings" (Analysis of Senate Counsel, June 21, 1971 at 7 Bill Jacket, L. 1971, ch. 987, at 39). The rejection of this proposal lends further credence to the conclusion that "residence buildings" is not limited to dwellings.

Footnote 5:This decision, order, and judgment is limited to the determination that it was an abuse of discretion to deny the permit application because it did not include stamped plans. It shall not be construed as excusing petitioner's compliance with any state or local law otherwise applicable to construction of the project.