Bickerton v. Town of Preble

• Decision Date: 17 May 2021
• Docket Number: 20-863
• Citation: 149 N.Y.S.3d 804,72 Misc.3d 573
• Parties: Dianne BICKERTON, Petitioner, v. TOWN OF PREBLE, W. Richard Fritz, as Code Enforcement Officer and Brian Buttner, as acting Code Enforcement Officer, Respondents.
• Court: New York Supreme Court

72 Misc.3d 573

149 N.Y.S.3d 804

Dianne BICKERTON, Petitioner,

v.TOWN OF PREBLE, W. Richard Fritz, as Code Enforcement Officer and Brian Buttner, as acting Code Enforcement Officer, Respondents.

20-863

Supreme Court, New York, Cortland County.

Decided on May 17, 2021

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 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.¹ 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.²

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 N.Y.3d 177, 182, 139 N.Y.S.3d 609, 163 N.E.3d 477 [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 A.D.3d 1066, 1067, 806 N.Y.S.2d 295 [2005], lv denied 6 N.Y.3d 709, 813 N.Y.S.2d 45, 846 N.E.2d 476 [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.³ 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 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 A.D.3d 88, 92-93, 804 N.Y.S.2d 506 [2005], affd 7 N.Y.3d 653, 827 N.Y.S.2d 88, 860 N.E.2d 705 [2006] ; Way v. Grantling, 289 A.D.2d 790, 791-792, 736 N.Y.S.2d 424 [2001] ). The requirements now encoded in Education Law §§ 7209...