        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

103
CA 16-00579
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF JAMES K. GLOGOWSKI,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ORLEANS, ORLEANS COUNTY
DEPARTMENT OF HEALTH, PAUL A. PETTIT AND
DAVID G. WHITCROFT, RESPONDENTS-RESPONDENTS.


WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, ALBANY (BENJAMIN F.
NEIDL OF COUNSEL), FOR PETITIONER-APPELLANT.

WEBSTER SZANYI, LLP, BUFFALO (TOM LEWANDOWSKI OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Orleans County (James P. Punch, A.J.), entered December 16, 2015 in a
proceeding pursuant to CPLR article 78. The judgment dismissed the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the petition is
reinstated, the determination is annulled and the matter is remitted
to Supreme Court, Orleans County, for further proceedings on the
petition.

     Memorandum: Petitioner commenced this proceeding pursuant to
CPLR article 78 seeking to compel respondents to approve design
proposals and plans for, inter alia, a septic system. We conclude
that Supreme Court erred in dismissing the petition.

     Petitioner is licensed as a professional land surveyor in New
York. His license contains an exemption pursuant to Education Law
§ 7208 (n), which allows him to design, inter alia, “sanitary sewerage
facilities of a minor nature in connection with subdivisions and the
extension and inspection thereof, but not including . . . commercial
buildings.” In January 2015, petitioner was retained by a local
farmer to design a septic system for a four-bedroom, one-and-one-half
bath farmhouse, which was to be used as temporary housing for up to 12
migrant farm workers. Petitioner thereafter submitted his design to
respondents (hereinafter, County) for approval. In February 2015,
petitioner received a letter from the County that it would accept
septic system designs from him only for residential projects, and that
the farmhouse had been determined to be commercial. The County
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                                                         CA 16-00579

therefore concluded that the septic system design must be the   work
product of a licensed professional engineer. The County also    sent a
letter to the farmer who retained petitioner and informed him   that the
proposed septic system design was not approved because it was   not
prepared by an engineer.

     Petitioner commenced this proceeding, alleging that the
categorical denial of his proposed design was an error of law, and
that the determination that the farmhouse at issue was commercial was
arbitrary and capricious. We agree with petitioner that the County’s
determination that he is categorically prevented from designing the
septic system is based on a flawed interpretation of law, and thus it
is invalid (see New York City Health & Hosps. Corp. v McBarnette, 84
NY2d 194, 205).

     We note that we afford the County no deference in interpreting
Education Law § 7208 (n). The interpretation of the statute does not
involve technical aspects within the specialized knowledge of the
County, and thus the meaning of the statute is for the courts to
determine (see Matter of Killian [General Motors Corp., Delco Chassis
Div.–Sweeney], 89 NY2d 748, 752).

     To interpret Education Law § 7208 (n), we must first determine
the scope of practice of a land surveyor generally. The definition of
the practice of land surveying is set forth in the Education Law as
follows: “The practice of the profession of land surveying is defined
as practicing that branch of the engineering profession and applied
mathematics which includes the measuring and plotting of the
dimensions and areas of any portion of the earth, including all
naturally placed and man- or machine-made structures and objects
thereon, the lengths and directions of boundary lines, the contour of
the surface and the application of rules and regulations in accordance
with local requirements incidental to subdivisions for the correct
determination, description, conveying and recording thereof or for the
establishment or reestablishment thereof” (§ 7203).

     Thus, as a general rule, a land surveyor is limited to the
measuring and plotting of real property and its boundaries, structures
thereon, etc., and may not design or evaluate “utilities, structures,
buildings, machines, equipment, processes, works, or projects,” such
practice being the privilege of engineers and, to a limited extent,
architects (see generally Education Law §§ 7201, 7301).

     In 1972, the Legislature authorized an exception to the limited
scope of a land surveyor’s practice. That exception is set forth in
Education Law § 7208 (n), which provides, in relevant part, that:
“[Article 145 of the Education Law] shall not be construed to affect
or prevent . . . [t]he design by a land surveyor of roads, drainage,
water supply or sanitary sewerage facilities of a minor nature in
connection with subdivisions and the extension and inspection thereof,
but not including sewage disposal or treatment plants, lift stations,
pumping stations, commercial buildings or bridges.”

     The Education Department also issued a regulation defining the
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                                                         CA 16-00579

term “minor nature” to include “the design of . . . sewage disposal
systems . . . for individual lots” (8 NYCRR § 68.12 [b] [1]).

     Petitioner correctly contends that, according to a plain reading
of the statute and regulation, the design he submitted to the County
is “of a minor nature” inasmuch as it is a sewage disposal system for
an individual lot. The County’s contention that the design is not “of
a minor nature” because it is of a “commercial building” is legally
and factually incorrect. We conclude that the County failed to
interpret the statute properly inasmuch as the language appearing
after “but not including” is a proviso limiting the exception for
designs “of a minor nature” and is not an independent basis for
determining that petitioner is disqualified from submitting the design
in question (see McKinney’s Cons Laws of NY, Book 1, Statutes § 212,
Comment; see also Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d
105, 114). The County also erred in concluding that the design was of
a “commercial building” inasmuch as the design was solely for a septic
system, not any sort of a building. We therefore reverse the
judgment, reinstate the petition, annul the County’s determination
that the submitted design is not “of a minor nature,” and remit the
matter to Supreme Court for further proceedings on the petition.




Entered:   March 24, 2017                       Frances E. Cafarell
                                                Clerk of the Court
