Opinion 92-41

FIRE DISTRICTS -- Appropriations and Expenditures (to repair thoroughfares within the district)
STREETS AND HIGHWAYS -- Repairs (by fire district)

TOWN LAW, §176(21): A fire district may not expend moneys to repair "sidewalks" within the district.

You ask whether a fire district may expend moneys to repair "sidewalks" within the district. According to your inquiry, the fire district in question is located on a narrow island in a town. You state that in the district "[t]here are no roads, per se", but there are a series of concrete "sidewalks". The "sidewalks" are used by residents and the fire district fire department for vehicular access to the properties within the district. The present condition of the "sidewalks", however, poses a problem with regard to the movement of fire department vehicles. You also state that the "sidewalks" were once privately owned, but you believe they have been acquired by the county in tax enforcement proceedings. You state that the county has not shown an interest in making the requisite repairs.

Fire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies (see Town Law, §176[16], [22]; General Municipal Law, §§209, 209-b; Volunteer Firefighters' Benefit Law, §5[1]; 1986 Opns St Comp No. 86-34, p 55), and have only those powers expressly granted by statute and necessarily implied therefrom (Town Law, §176[21]; 1992 Opns St Comp No. 92-4, p 9; see also 1982 Opns St Comp No. 82-242, p 302; 1981 Opns St Comp No. 81-196, p 209; 17 Opns St Comp, 1961, p 252; cf. Wells v Town of Salina, 119 NY 280). We are not aware of any statute which expressly authorizes a fire district to repair streets, highways, roads, sidewalks or other thoroughfares used to provide vehicular access to the properties within the district (cf. Town Law, §176[14], authorizing fire districts to construct and repair suitable buildings for, among other things, the preservation, protection and storing of fire equipment and apparatus). Therefore, a fire district may not make repairs to such thoroughfares unless it has implied authority to do so.

In determining whether implied authority exists, it is well established that:

[a] power not expressly granted by statute is implied only where it is 'so essential to the exercise of some power expressly conferred as plainly to appear to have been within the intention of the Legislature. Theimplied power must be necessary, not merely convenient, and the intention of the Legislature must be free from doubt' (Saltser & Weinsier v McGoldrick, 205 NY 499 at 506; see Lawrence Const. Corporation v State, 293 NY 634 at 639; People ex rel City of Olean v Western New York & Pennsylvania Traction Co., 214 NY 526; Gordon v McGovern, 284 AD 25, 130 NYS2d 128, affd 308 NY 989).

It is also well-established that "[w]hen there is a fair, reasonable and substantial doubt concerning the existence of an alleged power in a municipality, the power should be denied" (In re Piers Old Nos. 8, 9, 10 and 11, North River, in City of New York, 228 NY 140 at 152; see also Aldrich v City of New York, 208 Misc 930, 145 NYSS2d 732, affd 2 AD2d 760, 154 NYS2d 427).

Clearly, a fire district needs access to the properties within the district to respond to fire alarms and other emergencies. In our view, however, a fire district's power to respond to emergencies does not plainly and necessarily imply that it is a function of the fire district to ensure such access by constructing or repairing thoroughfares within the district.

The construction or repair of a thoroughfare that is used by the residents of a fire district, as well as the fire district fire department, provides a public benefit beyond the scope of the purpose for which a fire district is established (cf. 31 Opns St Comp 1975, p 115, concluding that a fire district may construct an access road to a source of water supply for the exclusive use of its fire department). Further, case law suggests that a fire district ordinarily would not be liable for losses incurred by reason of delayed response time due to road obstructions (see Timmons v Harvey, 85 AD2d 840, 446 NYS2d 433; McAfee v State, 1 Misc 2d 545, 145 NYS2d 547; cf., e.g., O'Connor v City of New York, 58 NY2d 184, 460 NYS2d 485; Bishop v Bostick, 141 AD2d 487, 529 NYS2d 116; Helman v County of Warren, 111 AD2d 560, 489 NYS2d 430, affd 67 NY2d 799, 501 NYS2d 325 [local government cannot be held liable for negligence in providing fire protection in the absence of a "special duty"]). Moreover, depending on the circumstances, counties, towns and villages have express statutory authorization to acquire land for, and to construct, improve, repair and maintain highways and sidewalks in a fire district (see Highway Law, §§102[1],[15], 117, 118, 129; 140[1],[2],[18], 150, 151, 170-173, 193, 284; Town Law, §§198[10-b], 200, 200-a; Village Law, §6-602), including authority to construct and repair any "public roads, walks, places and avenues" on any island in the town, even though such roads, walks, places and avenues are narrower than the width of highways required by statute (see Highway Law, §§140[2], 284). This broad comprehensive authority to provide public thoroughfares within fire districts strongly suggests counties, towns and villages, and not fire districts, have the exclusive local authority in this area (see Albany Area Builders Assoc. v Guilderland, 74 NY2d 372, 547 NYS2d 627 [provisions of Highway Law and Town Law establish detailed pre-emptive comprehensive scheme for funding town highway improvements]).

Accordingly, based on the foregoing, we do not believe that the express powers of a fire district necessarily imply the power to construct or repair thoroughfares used by both the fire department and residents of the district. Therefore, it is also our opinion that the fire district in question may not expend moneys to repair the "sidewalks" with the district.

December 30, 1992
J. Stewart McLaughlin, Esq., Attorney
Kismet Fire District