Opinion 2001 - 8


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 (within area of former fire protection district) -- Taxes (setting of lower rate for owners of multiple parcels)

FIRE PROTECTION DISTRICTS -- Dissolution (simultaneous establishment of fire district within area of dissolved fire protection district)

TOWN LAW 170, 171, 176(27), 181, 185: (1) Pursuant to the procedural requirements of article 11 of the Town Law, a town may dissolve a fire protection district and establish a fire district having the same boundaries as the dissolved fire protection district. (2) There is no authority for a fire district to establish a scale of tax rates so that owners of multiple parcels are taxed at a lower rate.

You ask whether a town may abolish a fire protection district within the town and instead establish a fire district to serve the same area previously served by the fire protection district. If so, you ask whether the fire district may establish a "scale of tax rates so that owners of multiple parcels would pay at a lower rate."

Article 11 of the Town Law (170 et seq.) generally governs the establishment and dissolution of fire and fire protection districts in towns. Article 11 authorizes towns to undertake proceedings to abolish fire protection districts (Town Law 185) and to establish fire districts (Town Law 170). In each case, the proceedings may be commenced either upon a proper petition of taxpayers (Town Law 170[1], 171, 185[1]) or on town board motion and without a petition (Town Law 170[2], 185[1-a]), subject to public hearing (Town Law 170[2], 171, 185[1]), [1-a]). In the case of proceedings to dissolve a fire protection district commenced on board motion, permissive referendum requirements also must be complied with (Town Law 185[1-a]; Report to the Governor on Legislation for L 1966, ch 907, Department of Audit and Control, June 17, 1966) .1

The town board may determine to dissolve a fire protection district either upon termination of any fire protection contracts then in force and effect, or may determine to dissolve the district "forthwith" (Town Law 185[2]). In the latter case, all fire protection contracts are immediately terminated upon the payment of any amounts becoming due by reason of fire protection furnished prior to the date of the town board's action in dissolving the district (id.). Article 11 further permits the merger of a proceeding to dissolve an existing fire protection district and a proceeding to establish a fire district to embrace all or any portion of the fire protection district to be dissolved (Town Law 185[4]; 9 Opns St Comp, 1953, p 219).

Accordingly, pursuant to the procedural requirements of article 11 discussed above, a town may dissolve a fire protection district and establish a fire district having the same boundaries as the dissolved fire protection district.2

Fire district taxes are assessed, levied and collected at the same time and in the same manner as town taxes are assessed, levied and collected (Town Law 181[1]; see also Town Law 105; 115; Real Property Tax Law 900). Thus, as a rule, fire district taxes are assessed, levied and collected at a single, uniform rate throughout the district (see 1982 Opns St Comp No. 82-313, p 400, construing analogous provisions of Town Law 184[6]; see also 22 Opns St Comp, 1966, p 142; 12 Opns St Comp, 1956, p 166; 7 Opns St Comp, 1951, p 353; 5 Opns St Comp, 1949, p 530).

Pursuant to the procedures set forth in Town Law 176(27), however, 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.

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 (1997 Opns St Comp No. 97-26, p 49; 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). In our opinion, however, the mere fact that certain fire district taxpayers own multiple parcels is not a sufficient reason, pursuant to the provisions of section 176(27), to justify the creation of a zone of assessment for those properties.  Moreover, we are aware of no other authority for a fire district to charge owners of multiple parcels at a lower tax rate for fire district taxes (see 1990 Opns St Comp No. 90-39, p 88; NY Const, art. XVI, 1).

August 6, 2001

Donald J. Holland, Esq., Town Attorney
Town of Bangor

1 Note that by chapter 37 of the Laws of 2000, Town Law 171, which sets forth petition procedures for fire, fire protection or fire alarm districts, was amended. The amendment was part of a comprehensive bill to set forth uniform provisions for acknowledging various types of petitions submitted to towns. The amendment, however, deleted a reference to the petition submitted by taxpayers for formation of a district and substituted a reference to a petition "for a permissive referendum pursuant to the provisions of" Town Law 170. Since section 170 contains no general permissive referendum requirement for district formation (cf. Town Law 170[4]), we believe that the amendment should not be read to require permissive referendum procedures for district formation (see Memorandum of the Office of the State Comptroller to the Counsel to the Governor, for Assembly 682, May 16, 2000).

2 Note that if the fire protection district is to be dissolved only upon termination of current fire protection contracts, the town board may establish the fire district at the same time as the town board determines to dissolve the fire protection district, with the effective date of the dissolution delayed until the termination of fire protection contracts then in force and effect (Town Law 185[5]; 9 Opns St Comp, 1953, p 219, supra).