Opinion 89-47


This opinion represents the views of the Office of the State Comptroller at the time it was rendered. The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


FIRE DISTRICTS -- Extension (when adjoining fire protection district is dissolved) -- (assessment of capital costs in district as extended)
FIRE PROTECTION DISTRICTS -- Dissolution (when added to adjoining fire district)

TOWN LAW, §§172-a, 172-d, 173, 176(27), 181: A town board may, after a public hearing, adopt a resolution dissolving a fire protection district and adding the whole of the dissolved district to an adjoining fire district. Such a proceeding must be undertaken pursuant to Town Law, §172-d. Absent the establishment of zones of assessment reflecting the existence of special services or benefits not common to the entire fire district, all costs of the fire district must be assessed equally against the area of the fire district, as extended.

This is in reply to your letter concerning the proposed extension of a fire district. You indicate that the town in which the fire district is located is currently served by the fire district and two fire protection districts. The fire district provides fire protection within the fire protection districts pursuant to contract. It has been proposed that the two fire protection districts be dissolved and the whole of each of the dissolved districts added to the fire district. You ask whether the dissolution of the fire protection districts and the addition of their territory to the fire district may be accomplished pursuant to the provisions of section 172-d of the Town Law. You also ask whether, once the territory of the dissolved districts has been added to the fire district, the cost of debt service on the existing debt of the fire district would be assessed against the territory of the fire district as extended.

Under section 172-d of the Town Law, a town board may, after a public hearing, dissolve a fire protection district and add the whole of the dissolved district to an adjoining fire district or alter the boundaries of a fire protection district so as to exclude a portion of its territory which adjoins a fire district and add the excluded portion to the adjoining fire district. The fire commissioners of the fire district must consent, in writing, to any addition under section 172-d. Once the town board has adopted a resolution approving the dissolution or alteration of the boundaries of a fire protection district and the addition of the territory to the adjoining fire district, it must proceed under the provisions of section 173 of the Town Law to extend the fire district. Based on the facts presented in your letter, it is clear that section 172-d provides the requisite statutory authority for the dissolution of the two fire protection districts and the addition of the territory of each of the dissolved districts to the fire district.

Your second question relates to the manner in which the cost of debt service on the fire district's existing debt is to be assessed once the district has been extended pursuant to section 172-d. Under section 181 of the Town Law, the amount specified in the annual budget of the fire district is to be assessed, levied, and collected from the taxable real property of the fire district in the same manner and at the same time as town taxes. Section 181 makes no provision for the allocation of any costs, including those for debt service, between the original area of the fire district and the area of any extension of the fire district. In this regard, we note that Town Law, §172-a(5), which relates to the alteration of boundaries of adjoining fire districts, provides that if a fire district whose boundaries are altered pursuant to that section has outstanding indebtedness, the cost of debt service for the existing debt shall be assessed, levied and collected from the taxable real property within the district as it existed prior to the alteration of boundaries (see 25 Opns St Comp, 1969, p 345; see also Town Law, §202[5], which provides that in certain types of improvement districts the properties within an extension are responsible for paying the capital costs incurred in the establishment of the extension, as well as that share of the capital costs of the original, or parent district as the town board shall determine). There is, however, no similar provision in Town Law, §172-d providing for debt service to be charged only on the fire district as it existed prior to the dissolution or alteration of the boundaries of a fire protection district. Therefore, in the absence of such a provision, we conclude that the debt service must be charged to the entire district as extended pursuant to section 172-d.

Although we conclude that the debt service must be charged to the entire district as extended, we note that section 176(27) of the Town Law authorizes the board of fire commissioners to establish, after a public hearing, zones of assessment within the fire district. It has been our opinion, however, that the establishment of such zones must be related to some special service or benefit not common to the entire fire district and that such zones should not be used for the purpose of allocating capital costs not related to some special service or benefit (6 Opns St Comp, 1950, p 232; 4 Opns St Comp, 1948, p 318). Consequently, absent the proper establishment of zones of assessment, the cost of debt service on the existing indebtedness of the fire district must be assessed equally against the area of the fire district as extended.

November 9, 1989
Michael J. Bolender, Esq., Town Attorney
Town of Ripley