Opinion 90-27


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 COMMISSIONERS -- Appointment (in joint fire district)
FIRE DISTRICTS -- Establishment of (joint fire district)
TOWN BOARD -- Powers and Duties (appointment of commissioners of joint fire district); (establishment of joint fire district)
VILLAGE BOARD -- Powers and Duties (appointment of commissioners of joint fire district); (establishment of joint fire district)

TOWN LAW, §189-a et seq. ; VILLAGE LAW, §§22-2210, 22-2212: The town board of a town and the board of trustees of a village located within the town are authorized to establish a joint fire district by resolution subject to a permissive referendum. The members of the board of fire commissioners of a joint fire district may be appointed by the town board and village board of trustees or they may be elected pursuant to the provisions of article 11 of the Town Law.

This is in response to your inquiry concerning a proposal that the town and the village within the town establish a joint fire district. You indicate that the town is currently served by a single fire protection district encompassing the area of the town outside the village and that the village wishes to discontinue the operation of its fire department. You ask how the town and village may proceed to establish a joint fire district. In addition, you ask whether the board of fire commissioners of a joint fire district must be elected or whether they may be appointed by the town board.

Chapter 241 of the Laws of 1988 repealed chapter 595 of the Laws of 1938 and amended the Town Law and the Village Law to provide authority for the establishment of joint fire districts without petition. Article 11-A of the Town Law (§189-a et seq.) and article 22-A of the Village Law (§22-2210 et seq.) provide the procedures for establishing, financing, and operating joint fire districts within contiguous territory of one or more towns and one or more villages within those towns.

Pursuant to Town Law, §189-a(2)(a), if it appears to be in the public interest, the town board and the village board shall hold a joint meeting for the purpose of jointly proposing the establishment of a joint fire district. The meeting must be held at a location within the proposed district. If, at the joint meeting, it is decided by majority vote of each board to propose a joint fire district, the town board and the village board of trustees must, within 30 days after the meeting, hold a joint public hearing at a location within the proposed district (Town Law, §189-a[2][b]). Notice of the hearing must be published at least once in a newspaper having general circulation within the town and village and postedin 5 public conspicuous places within the area of the town outside the village and 5 public conspicuous places in the village not less than 10 days before the date of the hearing. Also, notice must be mailed to members of the town and village boards. The notice must contain a brief description of the boundaries of the proposed district and of the objects and purposes for which the district is proposed to be established, and must specify the time when and place where the hearing will take place (Town Law, §189-a[2][b]).

If, after the public hearing, the town board and the village board of trustees determine that the establishment of the joint fire district is in the public interest, "subject to permissive referendum, such town board and board of trustees shall, by resolution duly adopted by a majority of each board, establish such joint fire district" (Town Law, §189-a[2][c]). Section 189-a(2)(c) does not expressly state that separate referenda are to be held in the village and the town (cf. Town Law, §206[9] relative to the consolidation of special districts; General Municipal Law, §121-a, relative to the formation of joint village and town police departments; NY Constitution, art 9, §[1][h], relative to certain transfers of functions or duties in a county with an alternative form of government). However, given the requirement that each board adopt a separate resolution establishing the joint fire district, we believe it follows that the separate resolutions are subject to separate referenda.

With respect to the procedures for these referenda, article 7 of the Town Law (§90 et seq.), which governs the conduct of referenda on petition in towns, is applicable "[w]henever this chapter [the Town Law] shall expressly provide that an act or resolution is subject to a permissive referendum ..." (Town Law, §90). Consequently, in accordance with article 7, if a sufficient petition is filed in a timely fashion, the town board's resolution adopted under article 11-A of the Town Law would have to be submitted to the qualified electors of the "district affected" (Town Law, §§91, 92). In the instant situation, it is our opinion that the district affected would be the area of town encompassing the fire protection district (see, e.g., 1982 Opns St Comp No. 82-149, p 189).

Article 9 of the Village Law, which governs the conduct of referenda on petition in villages, similarly provides that it shall apply "[w]henever this chapter shall expressly provide that an act or resolution of the board of trustees is subject to a permissive referendum ..." (Village Law, §9-900[1]). Section 22-2212 of the Village Law provides that, "[i]n all respects the provisions of article eleven-A of the town law shall apply to the establishment ... of any joint fire district provided for by this article". Thus, since the Village Law incorporates by reference the provisions of Town Law, article 11-A, including the permissive referendum requirements, we conclude that article 9 of the Village Law prescribes the procedures for such referendum. Therefore, the resolution of the village board of trustees establishing the joint fire district would have to be approved by the affirmative vote of a majority of the qualified electors of the village if a sufficient petition requesting a referendum is filed with the village clerk within the statutory period (Village Law, §9-902[1]).

If the town board and village board determine that it is in the public interest to establish the joint fire district, they shall, by local law, dissolve the existing fire protection district (Town Law, §189-c). In addition, the village board of trustees may, by resolution, authorize the sale or transfer of the fire house and fire equipment owned by the village to the joint fire district with or without consideration and upon such terms and conditions as they deem proper (Town Law, §189-b).

Once the joint fire district has been established, the property and affairs of the district are under the management and control of a board of fire commissioners which may have from three to seven members (Town Law, §189-e). Town Law, §189-e provides that the board of commissioners may be appointed by the town board and the village board of trustees in joint session or may be elected in the manner provided in Article 11 of the Town Law. The determination of whether the board of commissioners is appointed or elected is made by the town and village boards "by resolution adopted at the meeting for the establishment of the district in the same manner as the resolution for the establishment of the district is adopted" (Town Law, §189-e). If the commissioners are appointed, section 189-e provides that where there is an even number of commissioners, village residents may not constitute more than half the board, and where there is an odd number of commissioners, the number of village residents on the board may not exceed the number of town residents by more than one.

In summary, the town board and the village board of trustees, acting jointly, are authorized to establish a joint fire district encompassing the entire town and the village pursuant to the procedures outlined above. The members of the board of commissioners of the joint fire district may be either elected in the manner provided in Article 11 of the Town Law or appointed by the town and village boards in joint session, as determined by resolution adopted at the meeting for the establishment of the district.

August 2, 1990
James M. Steele, Supervisor
Town of Avon