Tarquini v. Town of Aurora
Tarquini v. Town of Aurora
Opinion of the Court
This appeal involves the validity and applicability of a State Uniform Fire Prevention and Building Code (Code) provision requiring an enclosure of at least four feet in height around residential outdoor swimming pools (9 NYCRR 1243.7 [f]).
I
Respondent Tarquini owns an 18-acre residential property in the Town of Aurora. In 1982, Tarquini constructed an unenclosed outdoor swimming pool on his property. Thereafter, the State Fire Prevention and Building Code Council promulgated the State Uniform Fire Prevention and Building Code (9 NYCRR part 600 et seq.) which became effective on January 1, 1984. The new Code included the pool enclosure regulation at issue here (9 NYCRR 1243.7 [f]). Tarquini never built the required enclosure.
In February 1988, the Town of Aurora commenced an enforcement proceeding pursuant to Executive Law §382 against Tarquini and other residential pool owners who were not in compliance with the pool enclosure regulation. Supreme Court ruled in the Town’s favor, rejecting Tarquini’s argument that the regulation did not apply to pools constructed prior to the regulation’s effective date. During the pendency of the enforcement proceeding, Tarquini sought a variance from the Buffalo/Rochester Uniform Code Board of Review. When the Board of Review denied his variance request, Tarquini commenced an article 78 proceeding against both the Town and the Board of Review challenging that
II
Whether the Council had the authority to promulgate the pool enclosure regulation turns on interpretation of the New York State Uniform Fire Prevention and Building Code Act (Executive Law §§ 370-383). The Board of Review asserts that Executive Law § 378 (2) authorizes the regulation in question. Tarquini counters by arguing that section 378 (2) only permits the Council to promulgate regulations in regard to the hazards of fire and toxic gases and that, therefore, it does not authorize the pool enclosure regulation which has no connection with those hazards.
Section 378 (2) provides:
"The uniform code shall address the following subjects:
"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.”
In interpreting section 378 (2), we must first " Took to the particular words for their meaning, both as they are used in the section and in their context as part of the entire statute.’ ” (Matter of Ellington Constr. Corp. v Zoning Bd. of Appeals, 77 NY2d 114, 121; Price v Price, 69 NY2d 8, 13.) A fair reading of section 378 (2) reveals that its first part authorizes the Council to establish standards regarding "the condition, occupancy, maintenance, conservation, rehabilitation and renewal of certain existing buildings, structures and premises” (emphasis added) and its second part authorizes the
Section 378 (2) essentially tracks Executive Law former § 391 (l).
Tarquini maintains that even if section 378 (2)’s application is not limited to the hazards of fire and toxic gases, the section does not authorize the pool enclosure regulation because a swimming pool is not a structure under the act, notwithstanding that a swimming pool is defined as a structure in the Code (9 NYCRR 606.3 [a] [187]). We disagree. Section 378 (2) autho
Finally, Tarquini contends that even if section 378 (2) permits general building and structural regulations, it does not authorize safety regulations such as the pool enclosure requirement, the purpose of which is to obviate hazards unrelated to fire or toxic gases. This argument also fails. Many of the standard Building Code provisions involve safety concerns having little or no apparent connection with the hazards of fire or toxic gases. Indeed, the Code abounds with such regulations (see, e.g., 9 NYCRR 713.1 [f] [requiring handrails or railings on stairs]; 1242.2 [b] [3] [directing electric lighting on stairs]; 1242.6 [mandating railings or parapet walls on the open sides on balconies, mezzanines, and porches]; 1243.9 [a] [elevator, dumbwaiter, and escalator safety]; 1244.1 [b] [fences and exterior walls must be maintained in safe condition]; see also, 9 NYCRR 713.1 [e]; 1242.1 [a] [4]; 1242.2 [b] [1]; 1243.7 [e] [1]). It is not suggested that these traditional Building Code requirements are unauthorized. The regulation requiring enclosure of swimming pools is no different from these other traditional regulations which are designed to prevent injuries from falls and other accidents unrelated to the hazards of fire and toxic gases. Accordingly, we conclude section 378 (2) authorized the Council to promulgate it.
III
Tarquini’s alternative contention is that, if the pool
Accordingly, in Matter of Tarquini v Town of Aurora the judgment of the Appellate Division should be reversed and the matter remitted for consideration of issues not reached by that court, and in Matter of Town of Aurora v Tarquini the order of the Appellate Division should be reversed, and the judgment of Supreme Court, Erie County, reinstated.
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.
In Matter of Tarquini v Town of Aurora: Judgment reversed, with costs, and matter remitted to the Appellate Division, Fourth Department, for consideration of issues not reached by that court.
In Matter of Town of Aurora v Tarquini: Order reversed, with costs, and judgment of Supreme Court, Erie County, reinstated.
. 9 NYCRR 1243.7 (f) states: "An approved enclosure, at least four feet in height, shall be provided around outdoor swimming pools, so that such pools are inaccessible to children. The enclosure may surround either the pool area or the property.”
. The dissenters urged that the Council had the power to promulgate the pool enclosure regulation, and that the exemption provision for buildings constructed prior to the Code’s effective date was inapplicable to swimming pools.
. Executive Law former § 391 (1) provided: "The state building code council created pursuant to article eighteen of this chapter, after consultation and review by the secretary of state to the extent hereinafter provided, is hereby authorized and empowered to promulgate rules and regulations relating to the condition, occupancy, maintenance, conservation, rehabilitation and renewal of certain existing buildings, structures and premises and to the safeguarding of life and property therein and thereabout and 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. Such rules and regulations shall comprise and be collectively known as the state building conservation and fire prevention code.”
. The exemption provision states: "Notwithstanding any other provisions of this act, the provisions of article eighteen of the executive law provided for in section one of this act shall not be applicable to any building constructed or under construction prior to the first day of January, nineteen hundred eighty-four, until the legislature by law expressly provides for financial incentives and assistance for the implementation of such provisions and their applicability to such buildings provided, however, that this section shall not apply to any provision of such article eighteen which is substantially similar to any provision of a code, general, special or local law, or ordinance to which an existing building was subject immediately prior to the effective date of such article.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.