Subdivision 2 of Town Law, §173 provides that when a town board adopts a resolution establishing or extending a fire district, the resolution must be submitted to the State Comptroller for approval. Subdivision 1 of section 173, on the other hand, provides that certified copies of a town board resolution "establishing or extending a fire alarm or a fire protection district, or consolidating two or more adjoining fire districts or fire protection districts, or altering the boundaries of a fire district or fire protection district, or dissolving a fire district, a fire alarm or fire protection district" must be filed with the county clerk and the State Comptroller. Subdivision 1, however, does not require approval of the town board's resolution by the Comptroller (cf. Town Law, §170, relative to the establishment and extension of fire alarm and fire protection districts situated within certain towns within the Adirondack Park).
The references in subdivision one of section 173 to consolidation of adjoining fire districts and fire protection districts and to alteration of the boundaries of a fire district, relate to proceedings to consolidate two or more adjoining fire districts or fire protection districts pursuant to Town Law, §§172 and 172-b, and to proceedings pursuant to section 172-a to alter the boundaries of two or more adjoining fire districts. The proceeding under 172-d to dissolve a fire protection district and add the territory to an adjoining fire district is distinct from the type of proceedings enumerated in subdivision 1 of section 173. Therefore, the provision in section 172-d requiring a town board to proceed in the manner prescribed in section 173 for extension of a fire district can only be intended to refer to the procedure in subdivision 2 of section 173 which, as noted, requires the Comptroller's approval.
This conclusion is further supported by the last paragraph of section 172-d and the legislative history of section 172-d. The last paragraph of section 172-d provides that the fire protection district is, in general, deemed dissolved and the territory added to the fire district upon adoption by the town board of "an order providing therefor, pursuant to subdivision four of section one hundred seventy-three". Subdivision 4 of section 173 refers an order of the town board establishing the extension adopted after "the state comptroller shall grant permission therefor". In addition, the Governor's approval message for section 172-d specifically notes that, unlike previous similar measures which had been vetoed, the bill which was enacted as section 172-d "provides for the approval by the State Comptroller ..." (McKinney's Session Laws of 1957, p 1885).
Accordingly, it is our opinion that the extension of a fire district to include the territory of a fire protection district dissolved pursuant to Town Law, §172-d is subject to the approval of the State Comptroller.
December 28, 1992