Opinion 2003 - 2

FIRE DISTRICTS -- Joint District (authority to form in coterminous town/village)
MUNICIPAL COOPERATION -- Fire Protection (authority to form joint fire district in coterminous town village)
TOWNS -- Powers and Duties (authority to form joint fire district in coterminous town/village)
VILLAGES -- Powers and Duties (authority to form joint fire district in coterminous town/village)

VILLAGE LAW §§17-1704, 22-2210; TOWN LAW §§189-a, 189-e: A coterminous town/village that operates principally as a village may not establish, pursuant to Article 11-A of the Town Law, a joint fire district that would encompass only the area of the coterminous town/village.

You ask whether a coterminus town/village, pursuant to Article 11-A of the Town Law (§189-a et seq.), may establish a joint fire district that would encompass only the area of the coterminous town/village. We are informed that the coterminus town/village in question came into being as the result of the creation of a town to be coterminous with a pre-existing village, and that it operates principally as a village.

Article 17 of the Village Law (§17-1700 et seq.) contains provisions applicable to a village embracing the entire territory of a town. Until 1977, Article 17, by its terms, applied only to villages incorporated to embrace the entire area of a pre-existing town. Chapter 960 of the Laws of 1977 amended Article 17 to apply also to towns created to be coterminous with a pre-existing village (see Village Law §17-1700, as amended by L 1977 ch 960).

Section 17-1703-a(1) of the Village Law provides that "[i]n any village as to which a town is created to be coterminous with such village," there must be submitted to the voters in the village a proposition to determine whether the local government shall operate principally as a village or principally as a town. In the event that the voters determine that the local government shall operate principally as a village, section 17-1703-a(3) provides that the holders of certain village offices shall by virtue thereof hold certain town offices.

As to fire protection, section 17-1704 of the Village Law provides that in "every such village" all the powers and duties imposed by law upon the town board or any officer thereof in relation to, among other types of districts, any "fire district" created or organized under the provisions of the Town Law, shall devolve and be imposed upon the board of trustees of the village. Section 17-1720(1) also provides that in "every such village" any fire districts created or organized under the County Law1 shall be merged in and consolidated with the village and shall become part of the village for fire protection purposes.2 Neither sections 17-1704 and 17-1720(1), nor any other provision of Article 17 of the Village Law3 authorizes a coterminous town/village to establish a fire district.

Because the coterminous town/village at issue has chosen to operate principally as a village, the provisions of law relating to the fire protection function in a village are pertinent. Generally, fire protection in villages is provided as a village function, either directly by the village fire department (see Village Law, Article 10 [§10-1000 et seq.]; see also 1990 Opns St Comp No. 90-19, p 42; Village Law §4-412[3][9]) or by certain other fire departments or incorporated fire companies pursuant to contract with the village board of trustees (Village Law §4-412[3][9]). Ordinarily, fire protection in villages, unlike towns, is not provided through formation of a district (see Town Law §§170[1], [4], 176, 183, 184; see also Village Law §§2-252[1][b], [6], 2-254, 19-1914). Therefore, when a coterminous town/village chooses to operate principally as a village, there is no need, as a matter of law, to establish a fire district in order to provide fire protection within that jurisdiction.

As to the applicability of Article 11-A of the Town Law, we note that section 22-2210 of the Village Law, in pertinent part, authorizes a town board and the board of trustees of a village located "in" the town to establish a joint fire district for the purposes stated in and "in the manner provided in article eleven-A of the town law …" (see also, Town Law §189-a[1]). Section 189?a(2)(a) of the Town Law provides that whenever it shall appear to the participating municipalities to be in the public interest, the town board and the village board of trustees shall hold a joint meeting at one location within the proposed joint fire district for the purpose of jointly proposing the establishment of the joint fire district. Section 189-a(2)(b) then goes on to provide, in relevant part, that:

If at such joint meeting it is determined by a majority vote of each board to make such proposal, each such board shall, within thirty days thereafter, hold a joint public hearing at one location within the proposed joint district upon such proposal and shall cause notice of such public hearing to be published in a newspaper having general circulation in such town and village, at least once, and posted in five public conspicuous places in the town outside such village and in five public conspicuous places in the village, not less than ten days before the date of the hearing (emphasis supplied).

The above-quoted references to a village located "in" a town in Village Law §22-2210, and to the "town outside such village" in Town Law §189-a(2)(b)4 , suggest that the authority to establish joint fire districts does not apply to coterminous town/villages because, by definition, the village, having the same boundaries as the town, is not located "in" the town and the town has no town-outside-village area.

Moreover, section 189-e of the Town Law, relating to the management of joint fire districts, provides for the selection of the members of a district's board of commissioners. In the event that the office of commissioner is appointive and there is an even number of commissioners on the board, "not more than half at any time shall be residents of such village …" (Town Law §189-e). Similarly, in the event that the office of commissioner is appointive and there are an odd number of commissioners on the board, "the number that are residents of such village … shall not exceed the number that are residents of such town … by more than one" (id.). By specifying membership on the board of commissioners on the basis of village and town residency, section 189-e implies that the village and town forming the joint fire district are not coterminous because the provision would not be needed if the village and town were comprised of the same territory.

We note further that Article 11-A of the Town Law was added by chapter 241 of the Laws of 1988 (L 1988 ch 241 §1). That measure also repealed chapter 595 of the Laws of 1938, as amended (former McKinney's Unconsolidated Laws, Title 16, Chapter 13 [§5851 et seq.]) (L 1988 ch 241 §2), which had previously governed the formation of joint fire districts.

Section 1 of chapter 595 of the Laws of 1938, as last amended prior to its repeal by chapter 241 of the Laws of 1988 (see L 1981 ch 865), provided, in pertinent part, that:

The town board 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 hereafter stated and in the manner hereafter provided, provided all of the territory in such joint fire district shall be contiguous. The procedure shall be initiated by petition. Such petition may be filed in the office of the town clerk of any of the town boards of the towns and to the board of trustees of the village or to the boards of trustees of the villages and shall be signed and acknowledged or proved in the manner as a deed to be recorded by resident taxpayers owning taxable real property aggregating at least one-half of the assessed valuation for state and county taxes of all the taxable real property in that part of the proposed district which is located in each such town outside of any such village … (emphasis supplied).

Thus, the above-quoted references to a village located "in" a town and to "that part of the proposed district located in each such town outside of such village," suggest that the statute from which Article 11-A is derived did not apply to coterminous town/villages because, as noted, in a coterminous town/village, the village is not located "in" the town and there is no area of the town outside of the village.

In addition, the legislative history of chapter 241 of the Laws of 1988 indicates that the primary purpose of this measure was to "[r]evise and simplify the procedure for creating [joint] fire districts," by eliminating the petition process previously required to form a joint fire district, and to "encourage consolidation" and the provision of fire protection "on a multi-municipal or regional basis" (see Governor's Bill Jacket for L 1988 ch 241, Memorandum in Support of S. 7865, by Senator Charles D. Cook; see also letter to Governor Mario M. Cuomo from Charles D. Cook, State Senator, dated July 6, 1988, re S. 7865-A / A. 10196-A; letter to Evan A. Davis from Paul D. Tonko, Member of Assembly, dated July 1, 1988, re Assembly Bill 10196A; memorandum to Evan A. Davis, Counsel to the Governor, from Robert C. Bastson, Counsel to the Office of Rural Affairs, dated June 30, 1988, re: S. 7865-A). There is nothing in the legislative history of chapter 241 that suggests either that chapter 595 of the Laws of 1938 applied to coterminous town/villages or that Article 11-A of the Town Law is intended to apply when a town and village have the same boundaries.

Accordingly, based on the foregoing, it is our opinion that a coterminous town/village that operates principally as a village may not establish, pursuant to Article 11-A of the Town Law, a joint fire district that would encompass only the area of the coterminous town/village.

June 2, 2003

Marianne Stecich, Esq., Attorney at Law
Village/Town of Mount Kisco

1 See former County Law §38.

2 Because these provisions predate chapter 960 of the Laws of 1977, were not amended by that legislation and appear to assume the existence of a town followed by the incorporation of a village encompassing the town (see Town Law §170[1]; former County Law §38; Village Law Article 10 [§10-1000 et seq.]), it is not entirely clear that sections 17-1704 and 17-1720(1) apply to a village that existed prior to the creation of a town encompassing the village. In any event, as indicated, neither provision authorizes a coterminous town/village to establish a joint fire district.

3 Section 17-1720(2) and (3) establish a procedure to authorize the continuation of any fire district, fire protection district, fire alarm district, or any district functioning pursuant to section 186 of the Town Law which is located wholly or partly within the boundaries of "every such village" (see Village Law §17-1720[1]). Since these provisions clearly apply only to villages that are incorporated to embrace the entire area of a town and that have determined that the village mayor and trustees shall constitute the supervisor and town board, respectively (see Village Law §17-1708[3]), they are not relevant to this inquiry.

⁴ Town Law §189-a(3)(b) and (4)(b) also contain identical references in relation to the procedures for adding territory to a proposed joint fire district or extending an existing joint fire district.