Opinion 96 - 19


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Powers and Duties (joint purchase with town of real property and construction of building for use as town hall and fire station)

MUNICIPAL COOPERATION -- Capital Improvements (joint construction of a building to be used as town hall and fire station) -- Real Property (joint acquisition of real property by town and fire district for construction purposes)

TOWNS -- Powers and Duties (joint purchase with fire district of real property and construction of building for use as town hall and fire station)

GENERAL MUNICIPAL LAW, §119-o; TOWN LAW, §§64(2), 81(1)(c), 176(14), 220(3): A town and a fire district located therein may, pursuant to General Municipal Law, article 5-G, enter into a municipal cooperation agreement to jointly acquire real property and construct a building thereon for use as a combined town hall and fire station. Both the town and the fire district must comply with all statutory requirements applicable to the individual undertaking and financing of such a project.

You inquire whether, pursuant to article 5-G of the General Municipal Law, a town and a fire district located within the town may jointly purchase land and construct a building thereon to be used as the town hall and fire station.

Article 5-G of the General Municipal Law (§§119-m - 119-oo) contains broad authority for municipal corporations and districts, in addition to any other general or special powers, to enter into agreements for the performance among themselves, or one for the other, of their respective functions, powers and duties on a cooperative or contract basis, or for the provision of a joint service (General Municipal Law, §119-o[1]). Section 119-n(a) defines "municipal corporation" to include towns and fire districts.(1) The term "joint service" for purposes of article 5-G includes the joint provision of any municipal facility (General Municipal Law, §119-n[c]).

Any agreement entered into pursuant to article 5-G must be approved by each participating municipal corporation or district by a majority vote of the voting strength of its governing board (General Municipal Law, §119-o[1]). Also, section 119-o(1) provides as follows:

Where the authority of any municipal corporation or district to perform by itself any function, power and duty or to provide by itself any facility, service, activity, project or undertaking or the financing thereof is, by any other general or special law, subject to a public hearing, a mandatory or permissive referendum, consents of governmental agencies, or other requirements applicable to the making of contracts, then its right to participate in an agreement hereunder shall be similarly conditioned.

Fundamentally, a municipal corporation may participate in a cooperation agreement only for the performance of those functions which it is empowered to perform individually (General Municipal Law, §§119-n[c], 119-o[1]; 1993 Opns St Comp No. 93-6, p 10; 1991 Opns St Comp No. 91-14, p 53). Thus, each participant must have statutory authority, independent of article 5-G, to perform the function (id.). In the instant case, both towns and fire districts are authorized to acquire lands and construct buildings for their respective functions. Specifically, towns may acquire land and construct a building for, among other things, use as a town hall (Town Law, §§64[2], 81[1][c], 220[3]). Similarly, fire districts are authorized to acquire lands and construct buildings for the preservation, protection and storing of fire equipment and for the social and recreational use of firefighters and district residents (Town Law, §176[14]). Accordingly, the town and fire district may, pursuant to article 5-G, jointly acquire land and construct thereon a building suitable for a combined town hall and fire station (1973 Opns St Comp No. 73-104, unreported; 21 Opns St Comp, 1965, p 163; General Municipal Law, §119-o[2][e]).

The parties to the agreement have discretion as to the specific terms and conditions (see General Municipal Law, §119-o[2][l]). Thus, the agreement should be fashioned, with the advice of the town's and fire district's attorneys, to address all pertinent issues in the particular construction project being considered. We believe, at a minimum, the underlying cooperation agreement should provide for: an equitable allocation of costs relating to the acquisition of land and construction of the building; terms relating to the title to the property, assignment of space within the building, insurance, maintenance and upkeep of the structure and related equipment and facilities; and terms as to the disposition of the building (see General Municipal Law, §119-o[2][a], [e]). With respect to the duration of the agreement, we note that paragraph j of subdivision 2 of section 119-o, as amended by the Laws of 1996, chapter 620, generally limits the term of a municipal cooperation agreement, entered into pursuant to article 5-G, to five years.  However, if the performance of the agreement involves the issuance of indebtedness, either joint or several, the term of the agreement may extend up to a maximum period of time equal to the period of probable usefulness established by section 11.00 of the Local Finance Law in connection with the object or purpose for which the indebtedness was issued(2). The agreement may be renewed at the conclusion of the term established, and the parties may provide for amendments, modifications, clarifications or cancellation of the agreement prior to the conclusion of the term (General Municipal Law, §119-o[2][j]).

The agreement could also address responsibility for the competitive bidding process in connection with the construction of the building. The agreement could provide for a single set of bid specifications, a single advertisement in one or more newspapers having circulations covering the area of the participants, the award of the contract by the appropriate officer or body of one of the participants, the payment of contractors by the chief fiscal officer of one of the participants upon audit by the auditing body or official of the fiscal officer's municipal corporation, and equitable allocation of the costs of conducting the bid process (see 1991 Opns St Comp, No. 91-1, p 1).

Finally, we caution that, as provided in General Municipal Law, §119-o(1), both the town and the fire district, prior to undertaking the joint acquisition and construction of the building, must comply with all applicable statutory requirements governing the individual undertaking and/or the financing of the activity (see, e.g., Town Law, §§81 and 220, General Municipal Law, §6-c, and Local Finance Law, §35.00, with respect to referendum requirements in a town; and Town Law, §§176[18] and 179, General Municipal Law, §6-g, and Local Finance Law, §38.00, with respect to spending limitations and referendum requirements in a fire district).

It is our opinion, therefore, that a town and a fire district located within the town may, pursuant to General Municipal Law, article 5-G, jointly acquire real property and construct thereon a building to be used for town hall and fire station purposes. The agreement should be fashioned to address all pertinent issues in connection with the project. The town and the fire district, prior to undertaking the project, must comply with all applicable statutory requirements governing the individual undertaking and/or financing of the project.

September 20, 1996
James E. Downey, Esq., Town Attorney
Town of Plymouth

1. Prior to being amended by the Laws of 1991, chapter 413, section 119-n(a) defined municipal corporation to include fire districts only for the purpose of agreements among two or more fire districts. Opinions of this Office which predated and are inconsistent with this amendment (e.g., 1974 Opns St Comp No. 74-632, unreported, and 1969 Opns St Comp No. 69-558, unreported) are hereby superseded.

2. Although apparently not at issue here, we note that the town and the fire district are not authorized to contract joint indebtedness with each other to finance the project (NY Const, art VIII, §1: Local Finance Law, §15.00[b]).