This action might not be possible to undo. Are you sure you want to continue?
RENSSELAER POLYTECHNIC INSTITUTE Petitioner, -againstTHE CITY OF TROY, NEW YORK; DAVID SHEERAN, in his capacity as CODE ENFORCEMENT OFFICER OF THE CITY OF TROY, NEW YORK; THE BUREAU OF CODE ENFORCEMENT OF THE CITY OF TROY, NEW YORK, and THE ZONING BOARD OF APPEALS OF THE CITY OF TROY, NEW YORK, Respondents. Supreme Court, Albany County, Special Term Index No. 7016-10 RJINo.01-10-101983 (Justice Michael C. Lynch, Presiding) APPEARANCES: Whiteman, Osterman & Hanna LLP Attorneys for Petitioner (John J. Henry Esq. and Christopher M. Mcfronald, Esq.) One Commerce Plaza Albany, New York 12260 Bailey, Kelleher & Johnson PC Attorneys for Respondents (Aaron Connor, Esq, of counsel) Pine West Plaza 5, Suite 507 Washington Avenue Extension Albany, New York 12205 LYNCH, J: In this CPLR Article 78 proceeding, petitioner Rensselaer Polytechnic Institute (hereinafter RPI) seeks an Order rescinding and declaring invalid a Stop Work Order issued by respondent Bureau of Code Enforcement of the City of Troy and declaring that petitioner is not required to obtain any approval or permit from the respondent City of Troy or any of its agencies prior to commencing the site work at issue in this proceeding. Respondents oppose the petition. DECISION AND ORDER/JUDGMENT
Oral Argument was held on February 18,2011. In October 2009, the City issued petitioner a work permit allowing it to perform work described as "Sitework at the Library- VCC Quadrangle which is in the immediate vicinity of this building. Roadwork walking paths, re grading, new plantings, etc". The described work was
located on the North side of RPI's Vorhees Computing Center (hereinafter VCC) (Petition ~12). As relevant to this dispute, the work included the installation of a fire access road constructed with '" grass pavers' ... a porous paving system designed to create code compliant fire access lanes where ecologically sensitive drainage is desired and the aesthetics of landscaped green space is important" (Petition ~16). After RPI completed the work described in the work
permit, the City's Fire Chief filed a complaint with the New York State Department of State Office of Fire Prevention and Control (OFPC). The basis for the complaint was the purported inadequacy of the fire access road (petition ~19, Garret Affidavit ~12). On or about March 18,2010, the OFPC issued a Notice of Violation to RPI because it failed to include a proper turnaround point as part of the fire access road on the south side of the VCC and for failing to properly identify the fire access road (Garret Affidavit Exhibit C; Petition ~20). In response to this citation, RPI submitted a revised, "compliance plan" for the construction of a fire access drive on the south side of the vee with the grass pavers (Petition
~20). On April 7, 2010, the OFPC approved the compliance plan as follows: the [OFPC] has approved the plan as submitted for the [VeC] until July 1,2010. This time extension is granted solely with regard to time needed for all elements of bringing the building into compliance. It does not endorse or deny, approve or disapprove any method of attaining that compliance. All required permits and approvals, plans and engineering must necessarily be handled through normal procedures with the City of Troy. (Petitioner Exhibit B). According to petitioner, although the City had no "normal procedures" for the approval of
the work, it "voluntarily" submitted the compliance plan to the City (Petition para 23-24). RPI representatives met with the City Attorney and City Engineer to review the compliance plan on April 22, 2010 (Rounds ~8) and June 10,2010 (Rounds ~~ 8-10). By correspondence to the City
Engineer dated June 9, 2010, RPI provided drawings of the project and advised: The scope of work required by Rensselaer's Compliance Plan is not associated with the erection, construction, enlargement, alteration, removal, demolition, conversion or change in occupancy of any building or structure at [RPI] including the [VCC]. As a result, in accordance with Section 141.4 of the city Code a building permit is not required for this work. Further, RPI described the compliance plan work as follows: As described on [the] drawings [RPI] proposed that the width of the existing fire access road on the south side of the vee be increased and its length extended further along the south side of the VCC. In addition, the existing dead-end condition on the south side of VCC would be eliminated by the construction of a new 26-foot wide access connection between the existing fire access road that runs east/west parallel to the north side of the Cogswell Lab and the MRC Building. The existing fire access road south of the VCC and the new fire access connector will be identified and delineated by the use of fire lane signs installed in accordance with Section DI03.6 of the NYS Fire Code. It should be noted that the [grass paver system] is the same porous paving system that you previously reviewed and determined to be structurally adequate for use as a fire access road. (Rounds Exhibit C). Petitioners allege that after this meeting, on June 11, 2010, the City Engineer gave RPI "verbal authorization" to proceed with the work set forth in the compliance plan (petition ~ 26). By correspondence dated June 16,2010, however, the City Engineer advised that his review of the engineering materials submitted altered his "initial interpretation" that the work was limited to "interior landscaping improvements and additional access widening through the use of the [grass pavers] fire access system". Rather, he explained, "[b]ecause this access drive is
specifically delineated using fire lane signs and specifically provides for fire department access we will ask that this be reviewed and approved by the Troy Fire Department" (Reeves Correspondence, Garrett Affidavit Exhibit D). Further, he explained,
"based on [Chapter 5 Section 501.2 ofthe Fire Code of New York State], a building permit shall be required for this work and shall only be issued once I have received notification from the Troy Fire Chief that his needs for proper access along the South side ofthe VCC building have been met" (ld.). On June 28, 2010, the City of Troy Bureau of Code Enforcement issued a Stop Work Order "Per Title 19 Pt. 1203 (l203(b) and NYSFC 501.2" (Petition Exhibit D). On or about
August 26, 2010, RPI appealed the Stop Work Order. By correspondence dated September 10, 2010, the Chairman of the City'S Zoning Board of Appeals advised that pursuant to City Building Code §14l-l6, appeals "involving a question under the Uniform Fire Prevention and Building Code shall be taken pursuant to applicable state law (and not by an appeal to the Zoning Board of Appeals" (Petition Exhibit E). By correspondence dated September 22,2010, petitioner's
counsel disputed this interpretation and urged the Zoning Board of Appeals to hear the appeal (Petition Exhibit F). By Correspondence dated September 30, 2010, the Chairman of the Zoning Board of Appeals confirmed that based on the Troy City Code, it would not hear the appeal. This CPLR Article 78 proceeding ensued. Respondents do not dispute petitioner's claim that it has exhausted its administrative remedies. In this proceeding, petitioner alleges that the respondent's determination to issue the Stop Work Order was "irrational, unreasonable, arbitrary and capricious, an abuse of discretion, unsupported by substantial evidence andlor affected by an error of law" because based on the Troy City Code, it had no authority to require a building or work permit for the work at issue (First Cause of Action), the provisions cited in the Stop Work Order were not violated (Second Cause of Action) and was contrary to the City's prior approval of the plans (Third Cause of Action). In response to the petition, respondent contends that the City "routinely enforcejd]" the New York State Fire Code at RPI (Mooney Affidavit ~10) and the Stop Work Order was properly issued because the City'S fire chief did not approve the use of grass pavers along the fire
access road (Garrett Aff. ~11). Title 19 Part 1203 of the New York State Code Rule and Regulations is titled, "Uniform Code: Minimum Standards for Administration and Enforcement". Here, respondents submit an
affidavit by its Code Enforcement Officer who explains that the basis for the Stop Work Order, in part, was 19 NYCRR § 1203.3(b), which, he explains, "requires a building permit for any alterations affecting fire safety features of a structure" (Mooney Affidavit ~7)1. In their Memorandum of Law, respondents argue that "[19 NYCRR] section 1203.3 specifically pertains
to when a permit is necessary and was cited in the Stop Work Order" (page 5). As part of its City Code, the City of Troy "acceptjed] the applicability of the Uniform Fire Prevention and Building Code for the City and direct [ed that] the accompanying articles of administration and enforcement thereof shall govern the construction, alteration, repair and demolition of all buildings and structures within the boundaries of the City, in order to protect the public safety, welfare and health in matters concerning all phases of construction and demolition" (Troy City Code §141-1 (A)). Further, with respect to building permits, the City Code provides: No individual, corporation or firm shall start the erection, construction, enlargement, alteration, removal, demolition, conversion or change in the nature of occupancy of any building or structure, or cause the same to be done, without first obtaining a building permit from the Director of Code Enforcement for each such building or structure; except that no building permit shall be required for the performance of painting or decorating or ordinary repairs which are not structural in nature. (Troy City Code 141-4). In this Court's view, the City's reliance on 19 NYCRR §1203.3 here is misplaced. Even assuming, without deciding, that the cited regulation imposed an affirmative obligation on petitioners here, the respondents fail to provide any specific authority for its Code Enforcement Officer's opinion that the regulation required petitioners to obtain a building permit for the 119NYCRR §1203.3(b) provides: "(b) construction inspections. (1) Permitted work shall be required to remain accessible and exposed until inspected and accepted by the government or agency enforcing the Uniform Code. Permit holders shall be required to notify the government or agency when construction work is ready for inspection. 5
excavation work performed.
The regulation provides, generally, that respondents must require
building permits "for work which must conform to the Uniform Code". Respondents do not claim that their City Code includes such a requirement. Further, although the Court recognizes
that the City's Fire Chief objects to the use of grass pavers on the fire access road, the Stop Work Order does not advise as to how the compliance work fails to conform to a specific provision of the Uniform Fire Prevention and Building Code or the Troy City Code. It is a "basic principle of CPLR article 78 review that' [jjudicial review of administrative determinations is confined to the 'facts and record adduced before the agency'" (Matter of World Buddhist Ch'An Jing Ctr .. Inc. v. Schoeberl, 45 A.D.3d 947, 951  [cit.om.]') Here,
there is no discernible record basis for the Code Enforcement Officer's determination to issue a Stop Work Order pursuant to "Title 19 Pt. 1203 (1203(b)". Neither the cited regulation nor the
Troy City Code specifically requires a building permit for the work in the compliance plarr'. Accordingly, to the extent that the respondent Code Enforcement Officer relied on the regulations set forth at 19 NYCRR §1203.3, the Stop Work Order was arbitrary and capricious. As set forth above, the City's Code Enforcement Officer also relied on Fire Code §50l.2 which provided': Construction Documents. Construction documents for proposed fire apparatus access, location of fire lanes and construction documents and hydraulic calculations for fire hydrant systems shall be submitted to the fire department for review and approval prior to construction In this regard, the City's Fire Chief submits an affidavit wherein he acknowledges that the City
ZIt appears that the City Code does require a Work Permit for excavation work (i.e. "the use, change of use or reuse of any land") as part of its zoning regulations (see Troy City Code §285-15). Here, however, respondents have not relied on this section of its Code. Similarly, although respondents' counsel contends that the respondents' authority to issue a permit derives from City Code §§ 141-1, 141-4 and 285-37, here, the Stop Work Order was not premised on an alleged violation of any City Code.
"Ihis provision is now set forth in Fire Code §501.3. 6
·issued a work permit approving the use of pavers on the North side of the VCC but explains that he was "omitted from the process" and, notwithstanding Fire Code §501.2, "no plans were submitted to [him] for review and approval". As set forth above, although there was some initial confusion among City officials, it appears that RPI's compliance plan was submitted to the Fire Chiefon or about June 16,2010. In opposition to this petition, the City's Fire Chief explains:
[t]he grass pavers present significant issues for the City's firefighters, not the least of which pertains to the personal safety of those under my command ...the issues with the grass pavers system are related to weight bearing when a ladder truck is needed and whether the pavers may properly support the ladder truck as the pavers degrade and grass and weeds grow through from underneath the paver system. Another concern is that during an emergency, valuable time may be lost trying to identify where the pavers are located, especially during winter when the pavers are snow covered. The location of the pavers is paramount due to the weight bearing issues noted above. (Garrett Affidavit ~8). Further, although he does not cite any prohibition applicable here, Chief Garrett avers that the use of grass paver systems is prohibited or limited in other jurisdictions (~15). In this Court's view, because the compliance plan included the location of the fire access road, RPI was required to submit the compliance plan to the City's Fire Department for review and approval (Fire Code §501.3 [formerly Fire Code §501.2]). Notably, in a letter addressed to
the Fire Chief dated March 10,2010, a representative of the New York State Office of Fire Prevention and Control explained, ". [i]n regards to your concern of the use of grass-thru syle bearing pavers, the use of any product shall be approved for a driving surface by the local code enforcement official and fire department. The unique requirement for fire department approval is found in FCNYS Section 501.2. It is my opinion that the use of grass-thru style bearing pavers may be approved with conditions, as set forth by the local jurisdiction and the fire department" (See Garrett Affidavit, Exhibit C). Here, the plan was submitted but the Fire Chief did not issue a determination to RPI to approve or disapprove the access road prior to the issuance of the Stop Work Order. The Code
Enforcement Officer's determination to issue a stop work order based on Fire Code §501.2 was therefore appropriate, because RPI could not continue work on the fire access road without the approval of the local Fire Department. The Court has reviewed the parties' remaining arguments and finds them to be either without merit or unnecessary to consider given this determination. Accordingly, it is
ORDERED AND ADJUDGED that the petition is denied, without costs. This represents the Decision and Order/Judgment of this Court. This Original Decision and Order/Judgment is being returned to the attorneys for respondents. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and
Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.
DATED: 2011 Al~my, New York
1. Notice of Petition dated October 18,2010, with Verified Petition and Exhibits A-G, Affidavit in Support (Claude Rounds PEl, Memorandum of Law in Support 2. Affidavit in Opposition dated December 10,2010 (Kevin Mooney) with Exhibit A, Affidavit in Opposition dated December 10, 20 10 (Thomas Garrett) with Exhibits A-G; Memorandum of Law; 3. Reply Affidavit (John J. Henry, Esq.) dated December 17,2010, Reply Memorandum of Law; 4. Map titled "Technology Quadranglee Reconstruction" provided at Oral Argument held on February 18,2011.