Opinion 94 - 23

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (of district located within two towns)

TOWN LAW, §§170, 172-d: In the case of the extension of a fire district located within two towns, if the proposed extension is upon petition pursuant to Town Law, §170(1), the town board of the town in which the extension is to be located may proceed on its own, without action by the other town. If the proposed extension is without petition and by board motion pursuant to Town Law, §170(2), joint action by both town boards is necessary. If the area of proposed extension is within an adjoining fire protection district, the town board of the town within which the extension is located may proceed on its own pursuant to Town Law, §172-d unless the fire protection district is located within more than one town.

You state that it is proposed that a fire district which is located within two towns be extended and that the entire area of the proposed extension is within one of the two towns. You ask whether joint action by the town boards of both towns is necessary to extend the fire district.

Town Law, §§170 et seq. contain provisions relative to the establishment and extension of fire, fire alarm and fire protection districts. Town Law, §170(1) provides as follows: 

1. The town board of any town or, if the proposed ... extension includes territory in more than one town, the town boards of each of the towns in which such proposed ... extension is situated, acting jointly by a majority vote of the members of each of such town boards, upon a written petition as hereinafter provided, may establish or extend fire districts ... in said town or towns ... A fire district shall not be extended pursuant to the provisions of this subdivision except upon the consent in writing of a majority of the commissioners of such fire district. Such consent shall be acknowledged or proved in the same manner as a deed to be recorded. [Emphasis added].

Thus, section 170(1) authorizes the extension of a fire district upon written petition (see Town Law, §171 setting forth the petition requirements). In the case of a fire district located within more than one town, joint action by the town boards is necessary only if the "proposed ... extension" is situated within more than one town. Accordingly, if, pursuant to petition, such a fire district is to be extended only into territory within one town, joint town board action is not necessary, and the town board of the town within which the extension is situated may undertake to extend the district (10 Opns St Comp, 1954, p 420; 7 Opns St Comp, 1951, p 369).

Subdivision two of section 170, provides a procedure pursuant to which fire districts may be extended on town board motion, without petition (see 12 Opns St Comp, 1956, p 280). Subdivision two provides, in pertinent part, as follows: 

2. Upon its own motion and without a petition, the town board of any town or, if the district as ... proposed to be extended includes territory in more than one town, the town boards of each of the towns acting jointly by a majority vote of the members of each of such boards may establish or extend fire districts or fire protection districts in such town or towns outside of any incorporated village or city or existing fire, fire alarm or fire protection district therein, after a public hearing thereon ... A fire district shall not be extended pursuant to the provisions of this subdivision except upon the consent in writing of a majority of the commissioners of such fire district. Such consent shall be acknowledged or proved in the same manner as a deed to be recorded. [Emphasis added].

Under section 170(2), joint action is required by the town boards of all the towns in which the district, "as ... proposed to be extended", is situated. The language in Town Law, §170(2) requiring joint action by all towns in which the district "as ... proposed to be extended" is situated is different from the language in subdivision 1 of that section which requires joint action only if the "proposed extension" includes territory in more than one town. The district "as ... proposed to be extended" includes the area of both the existing district and the proposed extension. Accordingly, joint action by the town boards of all towns in which territory of the existing district and the proposed extension is situated is necessary to extend a fire district on board motion without petition pursuant to Town Law, §170(2).

Finally, if a fire district is to be extended to add area within an adjoining fire protection district, the procedures in Town Law, §172-d may be utilized. Section 172-d provides that:

  ... the town board of the town in which such fire protection district is located or, if such fire protection district be situated in more than one town, the town boards thereof acting jointly by a majority vote of the members of each of such town boards may, after a public hearing thereon ... alter the boundaries of the fire protection district so as to exclude a portion of its territory which adjoins the fire district and add the excluded portion to such adjoining fire district; provided the fire commissioners of the fire district, in either such case, have consented in writing to such addition. Such consent shall be acknowledged or proved in the same manner as a deed to be recorded. * * *

Under this section, joint town board action is necessary to extend the fire district only if the adjoining fire protection district is located in more than one town. If the fire protection district is located within one town, then the town board of that town may proceed under section 172-d, even if the fire district which is to be extended is located within more than one town (see 24 Opns St Comp, 1968, p 967).

Accordingly, in the instant situation, if the proposed extension is upon petition pursuant to Town Law, §170(1), the town board of the town in which the extension is to be located may proceed on its own, without action by the other town. If the proposed extension is without petition and by board motion pursuant to Town Law, §170(2), joint action by both town boards is necessary. If the area of proposed extension is within an adjoining fire protection district, the town board of the town within which the extension is located may proceed on its own pursuant to Town Law, §172-d unless the fire protection district is located within more than one town. We note that in all cases, written consent of the board of fire commissioners is necessary (Town Law, §§170[1],[2]; Town Law, §172-d) and the extension is subject to the approval of the State Comptroller (Town Law, §173[2]).

November 29, 1994
Frederick A. Wolf, Esq., Town Attorney
Town of Aurora