WESTERLO — There’s no debate in Westerlo over the need for a new firehouse, but how the town should proceed with that project has the town board and planning board at odds in the run-up to local elections. 

Westerlo’s fire protection needs are served by the Westerlo Volunteer Fire Department, which Fire Chief Andrew Joslin told The Enterprise is a not-for-profit corporation that contracts with the town. 

The department has been seeking a location for a new firehouse for years, he said, but was unable to find anything suitable until the idea came up that the town board could subdivide the parcel that the town hall sits on and transfer three acres to the department for its new building. 

The land transfer has come under question by some, including planning board Chairman Beau Loendorf, who wrote a letter to the town board this week requesting that the planning board have oversight of the project. 

Supervisor Matthew Kryzak told The Enterprise this week that, although there is no obligation that the transfer or the firehouse project itself be reviewed by the planning board, he will propose that the town write up a memorandum of agreement with the fire company that makes the transfer of the land conditional on meeting planning and zoning board approvals. 

“We are technically exempt from our own zoning …,” Kryzak said, “but that would make everyone really unhappy.”

The memorandum, Kryzak said, would give the fire company assurance that the land is essentially theirs, justifying the expenses required to plan the project for that piece of property, without the town having to officially relinquish it, all while convincing residents that the board isn’t “trying to pull the wool over their eyes.” 

“This will give the fire company a good enough greenlight to go out and spend money on engineering for what they want to build, and be able to present it to our planning and zoning [boards], and have everything go through where everybody gets to poke at it and make sure the i’s are dotted and t’s are crossed,” he said.

Loendorf told The Enterprise this week that he could not comment on the planning board’s stance on that solution until the board members review the final wording. 

“As chairman I would want an environmental study, notification to all neighbors impacted by this move, a plan for emergencies in this new location, a building plan, and an outside study for the need of this move for the town,” he said.

He also stressed that he is in favor of the building and merely wants to make sure it’s the best decision.

Loendorf also initially questioned the legality of the transfer, and said that he consulted with one lawyer who said that transferring the land to a private entity would require that it be purchased at market price. A lawyer he sought for a second opinion has yet to weigh in, he said. 

The legality appears to rest on whether there is a benefit to the public. 

If the department is a private, not-for-profit entity, then it’s technically subject to a clause in the New York State Constitution that forbids the transfer of public property into private hands. 

However, according to an analysis published by the New York State Bar Association, enforcement of this clause comes down to someone filing a Section 51 action and proving in court that the transfer “causes waste or injury, imperils the public interest or is calculated to work public injury or to produce some public mischief.” 

“The touchstone of the Gift and Loan Clause is public purpose, so any ap- plication of this constitutional provision must focus on the intended use of the municipal resource. While an incidental private benefit is permissible, the primary beneficiary must be the public at large.”

It goes on to say that “interpretation of the Gift and Loan Clause necessarily involves an investigation into and definition of governmental purpose to establish whether a particular use of municipal resources is permissible
or prohibited.”

Monroe test

A Department of State guide also says that fire districts have limited immunity to zoning laws, and that they must be assessed according to nine factors, known as a Monroe “balancing of public interests” test, after a precedent-setting legal case in the 1980s over land use. 

The factors are:

— The nature and scope of the instrumentality seeking immunity; 

— The encroaching government’s legislative grant of authority; 

— The kind of function or land use involved; 

— The effect local land use regulation would have upon the enterprise concerned; 

— Alternative locations for the facility in less restrictive zoning areas; 

— The impact upon legitimate local interests; 

— Alternative methods of providing the proposed improvement; 

— The extent of the public interest to be served by the improvements; and 

— Intergovernmental participation in the project development process and an opportunity to be heard.

Kryzak said that this project would pass such a test and that the board can move forward, but that it would upset people not to have the project reviewed by local boards.

The New York State Department of State could not immediately be reached for any insight.

Placement and politics

Loendorf said on Wednesday, after being sent the bar association analysis, that he believes the town “could be in the right with this land transfer,” and that the question now is, “Is this the best place?”

He said that property across from the town hall might be viable, though Kryzak said last month that it’s uneven and can’t be built on. 

Both, it should be noted, are running for town positions this year: Kryzak for re-election to the supervisor position, on the Republican line, and Loendorf for election to a town board seat on the Democratic line.

Planning board member Angela Carkner, who had also raised concerns about the transfer and planning board oversight, had tried to secure a party endorsement for the supervisor position this year but was unsuccessful. 

Both Loendorf and Kryzak have alleged that political motivations are involved in the debate.

“Since it’s an election year everyone feels the need to politicize everything, just like they did with the town attorney and all the other things that have been used as a talking point for people running for office,” Kryzak said. 

Loendorf said that his request was not political, and that he’s simply trying to get information, while feeling like it’s being withheld. 

“It’s 100 percent political for them to try to steal a win for this upcoming election, unfortunately,” he said. “Otherwise, we would have had more open conversations, and more studies to ensure this is the best decision.”

Whatever the case, Chief Joslin said he doesn’t mind any additional oversight and that he’s just hoping to get the project done. 

“We’ve been working on identifying a new space for the station for years,” Joslin said. “Having the opportunity to finally have a piece of property for it is exciting.”

The difficulty, he said, has been meeting the station’s various needs, like water, while staying close enough to the center of town that fire insurance rates don’t go up. 

“There’s been a number of issues,” he said of other properties. “Some property was just too far out of range and would affect the [Insurance Service Offices] rating, so those are the challenges we’ve been struggling with.”

Joslin also said the department is not “on a timeline,” and that any additional oversight is a “non-issue.”

“We’re willing to work with the town,” he said. “We just would like to have control of the land before we go any further.”