Posted by: Patricia Salkin | May 19, 2021

NY Trial Court Concluded a Pool Qualifies as a Residential Accessory Structure and Stamped Plans Are Not Required

This post was authored by Olena Botshteyn, Esq.

In July 2019, the petitioner applied for a building permit to construct a pool enclosed by a premanufactured greenhouse-style structure. She was advised that an area variance was required, and after receiving the variance in May 2020 she reapplied for a building permit. The Code Enforcement Officer for the Town advised the petitioner that her application was missing plans of the proposed construction stamped by an architect or an engineer. After being denied a permit, the petitioner appealed to the Zoning Board of Appeals (ZBA), which concluded that it did not have jurisdiction, as the Code Enforcement Officer based his decision on New York State law, and not on the local zoning ordinance. The petitioner then commenced this action.

The key issue before the court was whether the pool qualifies as a residential structure, as residential structures with a gross floor area of 1,500 square feet or less are exempt from the stamped plans requirement. The court concluded that a pool can be a residential accessory structure, as the law specifically enumerates the types of uses, that shall not be included in the calculation of the gross floor area of residential buildings, and these include “garages, carports, porches, cellars, or uninhabitable basements or attics.” The court went on to explain that the primary purpose of the law is to identify projects that are likely to threaten public safety, and make sure that these are approved by a licensed professional, and a pool is not one of such projects. The court thus concluded that it was an abuse of discretion for the Code Enforcement Officer to deny a building permit to the petitioner and ordered to issue the permit.

Bickerton v Town of Preble, 2021 WL 1974737 (NY Sup. Ct. Cortland Co. 5/17/2021)


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