Legal Memorandum LU07


FIREHOUSES AND ZONING

When a local government, fire district or fire company undertakes the construction of a firehouse within its own borders or within the boundaries of another municipal government, such construction may be subject to the requirements of the host municipality’s zoning.


In Matter of County of Monroe, 72 N.Y.2d 338 (1988), the Court of Appeals addressed the issue of whether projects undertaken by one municipal government within the territory of another municipality are subject to the latter’s zoning laws. The Court abandoned the long standing "governmental vs. proprietary purposes" test in favor of a new "balancing of public interests" test for such circumstances, holding:

...This balancing approach subjects the encroaching governmental unit in the first instance, in the absence of an expression of contrary legislative intent, to the zoning requirements of the host governmental unit where the extraterritorial land use would be employed...Then, among the sundry related factors to be weighed in the test are: “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests”...In [a Florida case] the catalogue of potential factors to be considered by the reviewing court was expanded to include the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, and alternative methods of providing the needed improvement...Another important factor is intergovernmental participation in the project development process and an opportunity to be heard. Realistically, one factor in the calculus could “be more influential than another or may be so significant as to completely overshadow all others”, but no element should be “thought of as ritualistically required or controlling”...(citations omitted).


A decade later, the State Supreme Court, in Nanuet Fire Engine Co. No. 1 v. Amster, 177 Misc.2d 296 (Sup. Ct. Rockland Co. 1998), determined that construction of a firehouse, in a zoning district wherein it would otherwise require both an area variance and a site plan approval, was subject to the “balancing of public interests” test set forth in Monroe. While this decision at first created a flurry among the fire services, analysis reveals that it is actually a beneficial result.

The petitioner in the case was a private, not-for-profit fire company. As such, it had its own board of directors, lacked taxing authority, and could not be considered as a separate unit of government as would be the case for a city, town, village or fire district. Under these circumstances, it could be concluded that the fire company was fully subject to the Town’s zoning, as would be true for any other not-for-profit organization conducting its business in town. The court, however, looked to the relationship between fire districts and fire companies, and held:

A fire company... “is essentially under the control of the Fire District...” In order for the fire district to provide the services it is required to provide by law, it must function through fire companies...Thus, for purposes of determining whether property to be utilized for a fire station is subject to applicable zoning laws, a fire company stands upon the same footing as a fire district.

The court concluded that the construction of a firehouse by a not-for-profit fire company is subject to the Monroe “balancing of public interests” test rather than to the unqualified application of the Town’s zoning, and returned the matter to the Town to conduct the balancing of public interests test. After Town Board did so, it determined that public safety and other factors warranted allowing the construction to proceed.

Firehouses serve a vital public purpose by allowing fire departments to protect people and property from the ravages of fire. Location is a crucial factor in the achievement of these purposes. Because these and other functions of firehouses may weigh more heavily in their favor in the “balancing of public interests” test, the decisions in Monroe and Nanuet may make it easier to locate firehouses in areas where they might otherwise raise zoning or site plan issues.