Opinion 2000 - 21


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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

TOWNS -- Fire Districts and Fire Protection (participation in establishment of joint fire district)

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:

The town board of a town or the town boards of more than one town, and the board of trustees of an incorporated village or the boards of trustees of more than one incorporated village, as defined in the village law, located in said town or towns are hereby authorized to establish in such town or towns and village or villages a joint fire district for the purposes hereinafter stated and in the manner hereinafter provided, provided all of the territory in such joint fire district shall be contiguous. (emphasis added).

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[1], generally authorizing towns to establish fire districts outside any incorporated village; Town Law 189-a[2][b], [3][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.
Town of Monroe;
Villages of Harriman, Monroe and Kiryas Joel

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[4][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 city.