Opinion 2000 - 21
FIRE DISTRICTS -- Establishment
of (joint fire district when village is within two towns)
TOWN LAW §189-a; VILLAGE LAW §22-2210: In the case of the proposed formation of a joint fire district containing a village located within two towns, both towns must participate in the formation process.
You ask whether, in the case of the proposed formation of a joint fire district containing a village located within two towns, both towns must participate in the formation process.
Town Law, article 11-A (§189-a et seq.) and Village Law, article 22-A (§22-2210 et seq.) contain provisions relating to the establishment of joint fire districts in towns and villages. Section 189-a(1) of the Town Law provides as follows:
Village Law §22-2210 contains substantially the same provisions. Subdivision 2 of section 189-a of the Town Law sets forth joint meeting, joint public hearing and permissive referendum requirements applicable to the establishment of the joint fire district by "participating municipalities."
By their express terms, Town Law §189-a(1) and Village Law §22-2210 authorize one or more towns, and one or more villages located in "said" town or towns, to establish joint fire districts in "such" town or towns. This language suggests that, in order for a village to be included within a joint fire district, all towns within which the village is located must participate in the formation process. This conclusion is further supported by subdivision 4 of Town Law §189-a, which establishes a procedure for extension of a joint fire district by "each town and … each village in which any portion of the district as proposed to be extended is located …" (emphasis added). Thus, if a village located within more than one town is included within a joint fire district as proposed to be extended, all towns within which the village is located must participate in the extension process.
In addition, consistent with the conclusion that all towns within which a village is located must participate in the formation of the joint district, section 189-e of the Town Law provides that initial appointments of joint fire district commissioners prior to the first elections of commissioners "shall be made by the town board or, if the district includes territory in more than one town, by the town board of all of the towns …" (emphasis added). We also note that there is nothing in the provisions discussed above suggesting that the word "town" as used therein, in the absence of any limiting language, is intended to apply only when a portion of the town outside the village is to be included in the proposed joint fire district (cf. Town Law §2, defining a town; compare Town Law §170, generally authorizing towns to establish fire districts outside any incorporated village; Town Law §189-a[b], [b], specifically referencing the town outside village for purposes of posting notices).
Accordingly, it is our opinion that, in the case of the proposed formation of a joint fire district containing a village located within two towns, both towns must participate in the formation process1.
December 14, 2000
William N. Young, Jr., Esq.
1. We also have
been asked whether that portion of a joint fire district located within
a village may be removed from the district if the village were to become
a city. We note that Town Law §182 sets forth a petition procedure for
the exclusion of any portion of a fire district that is incorporated
into a city. We note also that Town Law §189-a[e] provides that the
provisions of Town Law, article 11, to the extent not inconsistent with
the provisions of article 11-A, shall apply to the "extension,
operations and maintenance" of any joint fire district provided for
by section 189-a. It is arguable that, notwithstanding the specific
reference in section 189-a(4)(e) to "extension," but not to
the "diminution," the provisions of section 189-a(4)(e) make
the petition procedures of section 182 applicable to joint fire
districts. However, since it is apparent that a city may be created only
by an act of the State Legislature (see, e.g., City of New York v
Village of Lawrence, 250 NY 429), we believe the issue of the continued
inclusion of a newly-incorporated city in a joint fire district
generally would be most appropriately clarified in the act creating the