Opinion 97 - 26

FIRE DISTRICTS -- Apparatus and Equipment (authority to allocate cost of equipment between zone of assessment and remainder of district); (authority to use equipment purchased for use within a zone of assessment in other areas of fire district); (disposition of upon dissolution of zone assessment) -- Dissolution (disposition of property upon dissolution of zone of assessment) -- Taxes (authority to allocate cost of equipment between zone of assessment and remainder of district)

TOWN LAW, §176(27): (1) If a fire district board of fire commissioners determines that, due to unique or unusual circumstances, properties within a particular area of the fire district will benefit to a greater extent from a particular piece of equipment, the board may, through the formation of a zone of assessment, charge a proportionately greater amount of the cost of that equipment to the zone of assessment, consistent with the greater or special benefit to the properties within the zone. (2) A fire district board of fire commissioners may permit specialized firefighting equipment, the cost of which was charged only to a zone of assessment, to be used, on occasion, for fire protection elsewhere within the fire district. (3) Unexpended moneys raised by taxation in a zone of assessment, and any property, the cost of which was charged only to a zone of assessment, belong to the fire district after the zone is abolished.

This is in reply to your letter regarding the establishment of zones of assessment in a fire district pursuant to Town Law, §176(27).

You ask the following questions:

(1) May the cost of purchasing firefighting equipment be allocated between the property in a zone of assessment and the remainder of the district, based on the anticipated use of the equipment?

(2) May specialized firefighting equipment, purchased for use within a zone of assessment with the cost charged only against the property in the zone, be used as needed in another area of the fire district?

(3) What is the appropriate procedure for disbursing unexpended moneys raised by taxes levied only upon the property in a zone of assessment, and disposing of equipment which was purchased for use in a zone of assessment with the cost charged only against the property within the zone, after the zone has been abolished by the board of fire commissioners?

Pursuant to the procedures set forth in Town Law, §176(27), the board of fire commissioners of a fire district may establish, after a public hearing, one or more zones in which the rate of tax for fire district purposes is different from the rate for other zones or for the portion of the district not included in any zone. The notice of the public hearing must specify the boundaries of the proposed zone(s), and the items of expense of the district which shall be charged only against the zone(s), or the other respects in which the rates of tax for the zone(s) are to be different from the rates for the remainder of the district.

After the public hearing and upon the evidence given at the hearing, the board of fire commissioners must determine by resolution whether it is in the public interest to establish the proposed zone(s), whether all the property, property owners and interested persons within the proposed zone(s) are benefited thereby or enjoy benefits greater than are conferred upon the remainder of the district, and whether all property or property owners benefited or who enjoy such benefits are included within the limits of such zone(s). Section 176(27) expressly states as follows with respect to the purpose of establishing zones:

It is intended that the provisions of this subdivision shall apply, for example, so as to permit one rate of taxation within a given distance of the fire house, where insurance rates are lower, and another rate for a greater distance from the fire house, or one rate for that portion of the district which does not have water hydrants, or in the event of any other unusual circumstances making the establishment of a zone or zones desirable.

Section 176(27) further provides that, once the zone has been established, the annual statement of expenditures of the fire district "shall specify the amounts to be raised by taxation in said zone or zones, which are not to be a general charge against all of the property of the fire district, and such amounts shall be levied only upon the property included in such zone or zones". The board of fire commissioners is also authorized, "by procedure similar to that provided in ... section [176] for the establishment of a zone or zones", to alter the boundaries of any zone(s) or abolish any zone(s) (Town Law, §176[27]; 6 Opns St Comp, 1950, p 85).

Thus, in general, costs may be charged to a zone when properties and property owners within the zone receive special services or benefits greater than, or not in common with, the rest of the district because of unique or unusual circumstances (1990 Opns St Comp No. 90-25, p 58; (1976 Opns St Comp No. 76-524, unreported; 6 Opns St Comp, 1950, p 85; 5 Opns St Comp 1949, p 371;). We have expressed the opinion that, in appropriate circumstances, the cost of specialized equipment that is required to provide effective fire protection to a particular area within a fire district may be charged to that area through the formation of a zone assessment (Opn No. 76-524, supra). Section 176(27) neither requires that an item of specialized equipment be purchased only with moneys raised within the zone nor prohibits the use of moneys raised outside the zone in the purchase of such equipment. Accordingly, if the board of fire commissioners determines that, due to unique or unusual circumstances, properties within a particular area of the fire district will benefit to a greater extent from a particular piece of equipment, it is our opinion that the board, through the formation of a zone, may charge a proportionately greater amount of the cost of that equipment to the zone, consistent with the greater or special benefit to the properties within the zone (cf. Opn. No 76-524, supra).

As to the use, outside a zone, of specialized equipment, the cost of which was charged only against properties within a zone, we note that a zone of assessment is not a separate corporate entity or an agency of the fire district that may take and hold property in its own name (cf. Town Law, §64[2]). Therefore, specialized firefighting equipment, the cost of which was charged only against properties within a zone, does not belong to the zone, but rather, to the fire district that purchased the equipment (see Town Law, §176[13]). Since the fire district board of commissioners, under Town Law, §176(19), has the "exclusive management and control of the property of the fire district" (see also Town Law, §§176[11], 176-a), and since section 176(27) does not require that property, the cost of which was charged exclusively to a zone, be used only for the benefit of the zone, the board, in our opinion, would be authorized to permit the use of such equipment, on occasion, for fire protection elsewhere within the fire district.

We caution, however, that if, prior to the time of purchase, it is anticipated that the equipment will be used both within and outside the zone, it generally would be appropriate to apportion the cost of acquisition between the zone and the rest of district, as outlined above. Further, if the need for the specialized equipment outside the zone arises after its acquisition and is more than occasional, the board should consider whether a change in circumstances warrants alteration of the boundaries of the zone, abolishment of the zone or apportionment between the zone and the rest of the district of further operating and capital costs associated with the equipment.

Finally, as noted above, a zone of assessment within a fire district is not a separate corporate entity, or an agency, such as a special improvement district. Further, Town Law, §176(27) makes no provision for the disbursement of moneys, or property acquired with moneys, raised within a zone upon dissolution of the zone (cf. Town Law, §§185[1], 198[12], 202-c[1]). Accordingly, it is our opinion that unexpended moneys raised by taxation in a zone, and any property, the cost of which was charged only to a zone, belong to the fire district after the zone is abolished (cf. 1992 Opns St Comp No. 92-2, p 5).

January 9, 1998
Bernard T. Callan, Esq., Attorney at Law
Lakeland Fire District