Carey v. City of Hastings ( 2013 )

CASES DETERMINED
IN THE
SUPREME COURT OF NEBRASKA
Mike Carey and Becky Carey, appellees, v.
City of Hastings, Nebraska, a municipal
corporation, appellant.
___ N.W.2d ___
Filed December 13, 2013. No. S-13-110.
1. Administrative Law: Evidence: Appeal and Error. In reviewing the decision
of an administrative board on a petition in error, both the district court and the
appellate court review the decision of the board to determine whether it acted
within its jurisdiction and whether the decision of the board is supported by
sufficient relevant evidence. The evidence is sufficient, as a matter of law, if an
administrative board could reasonably find the facts as it did on the basis of the
testimony and exhibits contained in the record before it.
2. Statutes. The interpretation of statutes and regulations presents questions
of law.
3. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a
tribunal to hear and determine a case in the general class or category to which
the proceedings in question belong and to deal with the general subject mat-
ter involved.
5. ____: ____. Personal jurisdiction is the power of a tribunal to subject and bind a
particular person or entity to its decisions.
6. Statutes: Appeal and Error. In the absence of a statutory indication to the con-
trary, an appellate court gives words in a statute their ordinary meaning.
7. Administrative Law. In the absence of anything to the contrary, language con-
tained in a rule or regulation is to be given its plain and ordinary meaning.
8. ____. For purposes of construction, a rule or order of an administrative agency is
treated like a statute.
9. Statutes: Intent. In construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be remedied, and the
purpose to be served. A court must then reasonably or liberally construe the
statute to achieve the statute’s purpose, rather than construing it in a manner that
defeats the statutory purpose.
10. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
(1)
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Appeal from the District Court for Adams County: Stephen
R. Illingworth, Judge. Reversed.
Michael O. Mead, Special City Attorney, of Whelan, Scherr,
Glen & Mead, P.C., L.L.O., for appellant.
Arthur R. Langvardt, of Langvardt, Valle & James, for
appellees.
Robert F. Bartle, Special Assistant Attorney General, of
Bartle & Geier Law Firm, for amicus curiae Nebraska Board
of Engineers and Architects.
Heavican, C.J., McCormack, Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
A municipal building inspector denied an application for
a building permit because the construction documents were
not prepared by a registered design professional. The city’s
appeals board upheld the denial, but in an error proceeding
initiated by the landowners, the district court reversed. The
city now appeals. Because the building code mandated prepa-
ration of the documents by a registered design professional
“where required”1 by Nebraska statutes, our decision turns
upon interpretation of exemptions specified in the Engineers
and Architects Regulation Act2 (Act) and related regulations.
We conclude that the appeals board acted within its jurisdic-
tion and that there was sufficient relevant evidence to support
a reasonable conclusion that the proposed renovation failed to
qualify for statutory and regulatory exemptions to the Act. We
therefore reverse the judgment of the district court.
BACKGROUND
Mike Carey and Becky Carey applied for a building permit
for an interior renovation of a 10,800-square-foot apartment
building located in Hastings, Nebraska. The Careys planned
to convert the building’s 20 apartment units into 10 apartment
1
See 2009 International Building Code § 107.1.
2
Neb. Rev. Stat. § 81-3401 et seq. (Reissue 2008 & Cum. Supp. 2012).
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units and to replace the building’s electrical and plumbing sys-
tems. They did not plan to move or alter the building’s load-
bearing walls. The proposed renovation also entailed the instal-
lation of fire-rated doors at the entrance of each apartment
unit and corridor, exit signs above exit doors, and continuous
handrails at each flight of stairs.
The building inspector for the City of Hastings denied the
Careys a building permit based upon his belief that the con-
struction plans submitted by the Careys were required to be
approved by a licensed architect. The applicable building code
required submitted construction documents to be prepared by
a registered design professional where required by statute.
Specifically, § 107.1 of the 2009 International Building Code
provided, in pertinent part: “Submittal documents consisting of
construction documents . . . shall be submitted in two or more
sets with each permit application. The construction documents
shall be prepared by a registered design professional where
required by the statutes of the jurisdiction in which the project
is to be constructed.” (Emphasis in original.)
Under the Act, criminal liability is attached to the unlicensed
practice of architecture or engineering unless such practice is
exempt.3 Section 81-3446(1) provides that the owner of any
real property engages in the practice of architecture or engi-
neering when he or she allows a project to be constructed
on his or her real property unless a licensed professional is
employed to furnish at least minimum construction phase
services or the project is exempt from the Act.4 The building
inspector believed that the Careys’ proposed renovation did not
qualify under any exemption to the Act. He therefore denied
the Careys a building permit based upon his belief that the
applicable building code required their construction plans to be
approved by a licensed architect.
The Careys disputed the denial of the building permit and
claimed that their proposed renovation came within an excep-
tion to the Act provided by § 81-3449(5). The exception
provides that the Act’s provisions regulating the practice of
3
See § 81-3442(1).
4
See § 81-3446(1).
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architecture do not apply to “[a]ny alteration, renovation,
or remodeling of a building if the alteration, renovation, or
remodeling does not affect architectural or engineering safety
features of the building.”5 Because no load-bearing walls were
to be moved or altered and safety features were to be added,
the Careys contended that the renovation qualified under
§ 81-3449(5).
The Careys also claimed that a regulation clarifying
§ 81-3449 established that their project was exempt from
the Act. The Careys cited 110 Neb. Admin. Code, ch. 10,
§ 10.4.1.2 (2008). Section 10.4.1.2 exempts a renovation if the
“area of renovation . . . does not adversely impact the mechani-
cal system; the electrical system; the structural integrity; the
means of egress; and does not change or come into conflict
with the occupancy classification.” (An amendment in 2011
did not change the quoted language.) The Careys contended
that their renovation came within § 10.4.1.2 because the build-
ing’s electrical and plumbing systems were to be replaced and
would therefore not be adversely affected.
The building inspector then sought an opinion from a compli-
ance officer with Nebraska’s Board of Engineers and Architects
(state board) whether the Careys’ proposed construction plans
required a licensed architect’s approval. After reviewing the
drawings submitted by the Careys, the state board sent the
Careys a letter stating that the board believed the renovation
was not exempt under § 81-3449(5) because the renovation
would affect the building’s safety features. The letter further
stated that the board believed 110 Neb. Admin. Code, ch. 10,
§ 10.4.1.2, was inapplicable because the building’s mechanical
and electrical systems and means of egress would be adversely
impacted. The letter explained that the state board concurred
with the building inspector’s determination that the renovation
required the involvement of a licensed design professional and
recommended that the city deny a building permit until such a
professional was retained.
The Careys appealed the denial of the building permit to the
City of Hastings Board of Appeals (appeals board). At the May
5
§ 81-3449(5).
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17, 2011, meeting of the appeals board, the Careys’ attorney
emphasized that the Careys believed their proposed renovation
was exempt from the Act under § 81-3449(5) and 110 Neb.
Admin. Code, ch. 10, § 10.4.1.2. The Careys’ attorney further
asserted that the state board only had the authority to prevent
the unauthorized practice of architecture or engineering and did
not have the authority to determine whether a building permit
should be issued.
One member of the appeals board then commented that the
plans submitted by the Careys did not clearly show the exist-
ing structure of the building so that a determination could be
made as to whether the renovation would have an adverse
effect. The board member stated that a design professional
was necessary to make that determination. The board member
then stated that he “would like to entertain a motion that [the
appeals board] uphold the decision from the [state board].”
The Careys’ attorney immediately clarified that the appeals
board was not reviewing the state board’s determination, but
was reviewing the building inspector’s denial of the building
permit. The building inspector also emphasized that the focus
of the motion should be his denial of the permit. Ultimately,
the appeals board’s proceedings show that a motion was
made by another member of the appeals board to “deny the
appeal.” The motion was seconded, and all members present
voted for the motion. Thus, the Careys’ appeal was denied,
which effectively upheld the denial of the permit by the build-
ing inspector.
The Careys next filed a petition in error in the district court
for Adams County pursuant to Neb. Rev. Stat. § 25-1901 et
seq. (Reissue 2008). After a hearing, the court entered an order
overruling the appeals board and ordering that the Careys be
issued a building permit without the requirement of a licensed
architect’s involvement. The court concluded that the appeals
board did not act within its jurisdiction and that there was
insufficient evidence to support the permit’s denial because
the appeals board’s decision was “totally based” upon the state
board’s recommendation. The court further stated that it could
find no authority granting the state board the power to make
recommendations to local building inspectors and that nothing
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within the Act authorized the state board to give advice on
local building projects. Finally, the court concluded that even
if the Act applied to the Careys’ renovation, the project was
exempt under § 81-3449(5).
The city filed a timely notice of appeal. Pursuant to statutory
authority, we moved the case to our docket.6
ASSIGNMENTS OF ERROR
The city assigns that the district court erred in (1) con-
cluding that the appeals board did not fulfill its jurisdictional
requirements, (2) concluding that the appeals board’s decision
was based upon insufficient evidence, and (3) ordering the city
to issue a building permit to the Careys without the require-
ment that they retain a licensed architect.
STANDARD OF REVIEW
[1] In reviewing the decision of an administrative board on a
petition in error, both the district court and the appellate court
review the decision of the board to determine whether it acted
within its jurisdiction and whether the decision of the board
is supported by sufficient relevant evidence.7 The evidence is
sufficient, as a matter of law, if an administrative board could
reasonably find the facts as it did on the basis of the testimony
and exhibits contained in the record before it.8
[2,3] The interpretation of statutes and regulations presents
questions of law.9 We independently review questions of law
decided by a lower court.10
ANALYSIS
Our review in this case is limited to whether the appeals
board acted within its jurisdiction and upon sufficient relevant
evidence in affirming the denial of the building permit. We first
6
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
7
Campbell v. Omaha Police & Fire Ret. Sys., 268 Neb. 281, 682 N.W.2d
259 (2004).
8
Id.
9
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
10
Id.
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analyze the basis for the board’s jurisdiction and then turn to
the sufficiency of the evidence before the board at its May 17,
2011, meeting.
Jurisdiction of Appeals Board
[4,5] The parties agree that the district court’s use of the
term “jurisdiction” is somewhat of a misnomer in the sense
that the court was not referring to subject matter or personal
jurisdiction. We have defined subject matter jurisdiction as
the power of a tribunal to hear and determine a case in the
general class or category to which the proceedings in question
belong and to deal with the general subject matter involved.11
The parties agree that the appeal was correctly addressed to
the appeals board, which had the authority to review the denial
of the building permit. Personal jurisdiction is the power of a
tribunal to subject and bind a particular person or entity to its
decisions.12 Clearly, the city and the Careys were present at
the hearing on the Careys’ appeal and submitted to the appeals
board’s jurisdiction of their appeal.
When the district court spoke of jurisdiction, it addressed
the appeals board’s reliance on the recommendation from the
state board. However, this conclusion conflates the issue of
jurisdiction with the sufficiency of the evidence. The evidence
relied upon by the appeals board had no bearing upon its
authority to either affirm or overrule the building inspector’s
denial of the building permit. The Careys’ appeal of the denial
of the building permit was properly before the appeals board,
which had the authority to affirm or reverse the denial. The
court therefore erred in finding that the appeals board acted
outside its jurisdiction in affirming the permit’s denial.
Sufficiency of R elevant Evidence
The district court concluded that the appeals board’s deci-
sion to affirm the denial of the building permit was “totally
based” on the state board’s recommendation that a licensed
design professional was required to be retained by the Careys.
11
Young v. Govier & Milone, 286 Neb. 224, ___ N.W.2d ___ (2013).
12
Id.
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The court therefore found that the appeals board’s decision was
not made upon sufficient relevant evidence. The court further
concluded that even if the Act applied, the renovation was
exempt under § 81-3449(5).
We disagree with the court’s conclusion that the appeals
board did not base its decision upon sufficient relevant evi-
dence. We emphasize that in the context of a decision made
by an administrative board, evidence is sufficient if the board
reasonably could find the facts as it did on the basis of the tes-
timony and exhibits contained in the record before it.13
First, the district court’s conclusion was based upon an
incorrect reading of the appeals board’s proceedings. The
court partly relied upon one member’s statement expressing
a desire to “entertain a motion” to uphold the state board’s
decision. But this overlooks the discussion that followed
where the Careys’ attorney emphasized the motion should
focus on the building inspector’s decision and the same mem-
ber “concur[red]” in that articulation. The court also relied
upon a snippet of the discussion where the building inspector
appeared to admit that if the state board had disagreed with
his conclusion, he would have reversed his ruling. But this
was immaterial. The record makes it clear that the inspector
had already made his decision. According to the case summary
prepared for the appeals board, the Careys were informed in
writing on September 14, 2010, of the requirement that the
plans be prepared by a licensed architect. The state board’s
action was not taken until April 22, 2011. The inspector’s
willingness to reconsider his decision did not amount to an
abdication of his decisionmaking authority. Thus, the court’s
conclusion that the appeals board “totally based” its deci-
sion on the state board’s recommendation is not supported by
the record.
Second, the record includes sufficient relevant evidence
from which the appeals board could reasonably find that the
Careys’ construction plans were required to be approved by a
licensed architect under the applicable building code. In addi-
tion to the state board’s recommendation, the appeals board
13
See Campbell, supra note 7.
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was presented with the building inspector’s independent con-
clusion that the Careys’ renovation was not exempt from the
Act. The building inspector told the appeals board that it was
“pretty clear” that the Careys’ project required an architect of
record under the Act.
[6,7] Third, the evidence reasonably supported the appeals
board’s conclusion that the Careys’ project did not qualify
under the statutory or regulatory exemptions to the Act. But
before we discuss this evidence, we must examine the statutory
and regulatory exemptions without deference to the appeals
board’s interpretation. In the absence of a statutory indication
to the contrary, an appellate court gives words in a statute their
ordinary meaning.14 Likewise, language in a rule or regulation
is to be given its plain and ordinary meaning.15
Contrary to the Careys’ argument, § 81-3449(5) did not
exempt their project from the Act. Section 81-3449(5) exempts
“[a]ny alteration, renovation, or remodeling of a building if
the alteration, renovation, or remodeling does not affect archi-
tectural or engineering safety features of the building.” The
Careys argue that “no existing architectural or engineering
safety features are affected by the remodeling involved here,
although certain modern safety features arising in the fire
codes are being added, under the supervision of the state fire
marshal and the city’s building inspectors.”16 Thus, the Careys
implicitly argue that because these safety features were gov-
erned by fire codes, they are not “architectural” safety features.
We disagree. The practice of architecture includes “services in
connection with the design and . . . alteration of a building.”17
Design, in turn, means the “preparation of schematics, layouts,
plans, drawings, specifications, calculations, and other diag-
nostic documents which show the features, scope, and detail
of an architectural or engineering work to be executed.”18
14
Vlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72 (2013).
15
See Belle Terrace v. State, 274 Neb. 612, 742 N.W.2d 237 (2007).
16
Brief for appellees at 13.
17
§ 81-3420.
18
§ 81-3409.
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Compliance with fire, building, plumbing, and similar codes
clearly requires such layouts, plans, drawings, and specifica-
tions to incorporate the necessary features in the design of
a project. The design of the Careys’ renovation entailed the
installation of fire-rated doors at the entrance of each apart-
ment unit and corridor, exit signs above each exit door, and a
continuous handrail at each flight of stairs. Thus, the evidence
was sufficient to reasonably support the conclusion that the
renovation would affect the building’s safety features and was
thereby not exempt from the Act.
[8,9] Similarly, the regulatory exemption did not apply.
The exemption provided by § 10.4.1.2 applies if the “area of
renovation . . . does not adversely impact the mechanical sys-
tem; the electrical system; the structural integrity; the means
of egress; and does not change or come into conflict with the
occupancy classification.”19 In analyzing this exemption, we
first reject the Careys’ interpretation that a renovation that
entails the replacement of a building’s structure or systems
cannot be said to “adversely impact” such structure or systems.
Renovations are generally undertaken to improve the condi-
tion of a building or its systems. Thus, to accept the Careys’
interpretation would effectively remove all renovations from
the requirement of oversight by a licensed design professional
and defeat the purpose of the Act. For purposes of construc-
tion, a rule or order of an administrative agency is treated like
a statute.20 In construing a statute, we look to the statutory
objective to be accomplished, the evils and mischiefs sought
to be remedied, and the purpose to be served. A court must
then reasonably or liberally construe the statute to achieve
the statute’s purpose, rather than construing it in a manner
that defeats the statutory purpose.21 We therefore interpret the
phrase “adversely impact” as including the replacement of a
building’s structure or systems.
19
See 110 Neb. Admin. Code, ch. 10, § 10.4.1.2.
20
Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002).
21
Blakely, supra note 9.
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Here again, the appeals board had sufficient evidence to
reasonably support its conclusion that the renovation failed
to qualify under § 10.4.1.2. The evidence that the building’s
plumbing and electrical systems were to be replaced reason-
ably supported the conclusion that the building’s mechanical
and electrical systems would be adversely affected. The instal-
lation of fire-rated doors at the entrance of each apartment
unit and corridor similarly provided reasonable support for
the conclusion that the means of egress would be adversely
affected. Thus, the evidence reasonably supported the appeals
board’s decision.
We conclude that the evidence before the appeals board rea-
sonably supported the determination that the applicable build-
ing code required the Careys’ submitted plans to be approved
by a licensed design professional. Because we find that the
appeals board acted within its jurisdiction and upon sufficient
relevant evidence, we reverse the court’s order overruling the
permit’s denial.
Order to Issue Building P ermit
[10] Because we conclude that the appeals board acted
within its jurisdiction and upon sufficient relevant evidence,
we need not consider whether the court acted within its
authority in ordering the city to issue a building permit with-
out the requirement of a licensed architect’s involvement.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it.22
CONCLUSION
We reverse the district court’s order overruling the permit’s
denial based upon our conclusion that the appeals board acted
within its jurisdiction and upon sufficient relevant evidence in
affirming the denial of the building permit. Notwithstanding
the state board’s recommendation, the appeals board was pre-
sented with sufficient evidence to conclude that the Careys’
22
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).
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renovation was not exempt from the Act and that a licensed
architect was required to approve the submitted construction
plans under the applicable building code. We therefore reverse
the court’s order and so need not consider the appropriateness
of the granted relief.
R eversed.
Wright, J., participating on briefs.
Connolly and Stephan, JJ., not participating.
Justin S. Furstenfeld, appellant, v.
Lisa B. P epin, appellee.
___ N.W.2d ___
Filed December 13, 2013. No. S-13-122.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
does not involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion independent of
the lower court’s decision.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdic-
tion over the matter before it, irrespective of whether the issue is raised by
the parties.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the tribunal from
which the appeal is taken.
4. Final Orders: Appeal and Error. The three types of final orders which may
be reviewed on appeal are (1) an order which affects a substantial right and
which determines the action and prevents a judgment, (2) an order affecting a
substantial right made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action after judgment
is rendered.
5. Actions: Statutes. “Special proceedings” include civil statutory remedies not
encompassed in chapter 25 of the Nebraska Revised Statutes.
6. Actions: Modification of Decree: Child Custody. Proceedings regarding modi-
fication of a marital dissolution, which are controlled by Neb. Rev. Stat. § 42-364
(Cum. Supp. 2012), are special proceedings, as are custody determinations, which
are also controlled by § 42-364.
7. Words and Phrases. A substantial right is an essential legal right, not a mere
technical right.
8. Final Orders: Appeal and Error. A substantial right is affected if the order
affects the subject matter of the litigation, such as diminishing a claim or defense