Thursday, January 22, 2009

Fire District Has Standing...

In an unpublished decision, dated January 19, 2009, Judge Stephen Ferradino (Saratoga County, Supreme Court Justice) held that a fire district (a/k/a political subdivision) has standing to challenge a planning board decision.

This story actually starts about 2 years prior when the Town of Providence was drafting a local law that would require new subdivisions to install water points in order to account for the lack of proper water sources for use in fighting fires. The Providence Fire District was involved in the process of drafting the proposed law. In the end, the local law actually required the Planning Board to request an "advisory opinion" from the fire district on any "major subdivision" regarding the size of the water point needed for a proposed subdivision and that any required water point would be one that complied with NFPA 1142 (Standard on Water Supplies for Suburban and Rural Fire Fighting). Unfortunately, it appears that the Town's inclusion of an advisory opinion for the fire district may have been illusory.

Fast forward to 2008, and the first major subdivision is put before the Planning Board. The fire district provides its advisory opinion - the 10 (2-story) home subdivision requires a 20,000 gallon water point in order to provide an adequate water supply. The applicant sought its own expert that held a 7,500 gallon water point is sufficient. Both the fire district and the applicant's expert provided a different interpretation of the NFPA. The planning board decided to take the opinion of the applicant's expert over its own fire district.

The fire district felt so strongly about the need for a 20,000 gallon water point that it commenced an Article 78 proceeding against both the planning board and the applicant. During the conference with the Judge, many questions were posed to the petitioner regarding why the fire district should be granted standing. It seemed like a daunting hurdle. No cases on point were found.

However, in the Providence Fire District v. Providence Planning Board (Sup. Ct., Saratoga Co. 2009) decision, Judge Stephen Ferradino found that the fire district had standing to challenge decisions pertaining to the water point. Judge Ferradino found that the fire district's concerns were unique from the general public. Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761 (1991). The fire district was uniquely concerned about the safety of its fire fighters in the face of an inadequate water supply supply.

While the fire district lost its petition on the merit, it is clear that the planning board may face another challenge (with no argument available on standing) if it continues to approve major subdivision applications with inadequate waterpoints.

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