Town of Aurora v. Tarquini

A threshold issue is whether we may entertain that contention inasmuch as it is raised for the first time on appeal. We conclude that we may because it involves a pure question of statutory interpretation and thus "is not a contention that could have been 'obviated or cured by factual showings or legal countersteps’ ” even if it had been raised at Trial Term (American Sugar Ref. Co. v Waterfront Commn., 55 NY2d 11, 25, appeal dismissed sub nom. New York Shipping Assn. v Waterfront Commn., 458 US 1101, quoting Telaro v Telaro, 25 NY2d 433, 439).

Regarding the merits, our reading of the pertinent provisions of article 18 of the Executive Law (§§ 370-383) compels us to conclude that the regulation is not authorized by the enabling legislation. The statute, which is entitled the "Uniform Fire Prevention and Building Code Act”, establishes uniform and minimum standards of fire protection and building construction (Executive Law § 371 [1] [a]-[c]; [2] [a], [b] [1]-[4]). The act authorizes the appointment of a council that is empowered to study existing laws in order to ascertain "the effectiveness of their provisions for health, safety and security, particularly as such provisions relate to the protection of life and property from the dangers of fire” (Executive Law § 375 [2]). The act authorizes the Council, following such study, to "formulate a uniform fire prevention and building code” to effectuate "the purposes of this article and the specific objectives and standards hereinafter set forth” (Executive Law § 377 [1]). To that end, the Council is empowered to promulgate "requirements for construction and construction materials for public and private buildings * * * consonant with accepted standards of engineering and fire prevention practices” (Executive Law § 377 [2] [a]) in order to "reduce the cost of construction without substantially affecting reasonable requirements for the health, safety and security of the occupants or users of buildings” (Executive Law § 377 [2] [c]). Under the act, a "building” is defined as a roofed "structure affording shelter for persons, animals or property” (Executive Law § 372 [3]). Executive Law § 378 (2), the provision relied upon by the dissent as authorizing the Council’s promulgation of the swimming pool enclosure regulation, further indicates that the focus of the act is on the adequacy of building construction vis-á-vis the hazards of fire and other specified risks. That statute provides: "The uniform code shall address * * * [standards for the condition, occupancy, maintenance, conservation, rehabilitation and renewal of certain existing buildings, structures and premises and for the safeguarding of life and property therein and thereabout from the hazards of fire, explosion or release of toxic gases arising from the storage, handling or use of combustible or hazardous substances, materials or devices” (Executive Law § 378 [2]; emphasis supplied).

The swimming pool enclosure regulation cannot be sustained under the general provisions of the act nor, as argued by the dissent, pursuant to the specific provisions of Executive Law § 378 (2). A swimming pool is not a "building” under the act, and the enclosure requirement has nothing to do with fire prevention or the adequacy of building construction. Moreover, although a swimming pool is a "structure”, the enclosure regulation has nothing to do with the hazards of fire, explosion or release of toxic gases from the storage, handling or use of hazardous or combustible substances. However laudable the Council’s purpose in attempting to safeguard persons from the hazards of swimming pools, drowning is not among those specific hazards that the Legislature sought to guard against in promulgating the act and in delegating its legislative authority to the Council.

All concur, except Green and Lawton, JJ., who dissent and vote to affirm, in the following memorandum.