Opinion 2003 - 6


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

MUNICIPAL FUNDS -- Part-Town Charges (raising costs for town police department in town that includes village with its own police department)
POLICE AND POLICE PROTECTION -- Financing (raising costs for town police department in town that includes village with its own police department) -- Police Department (raising costs in town that includes village with its own police department)

TOWN LAW 150(1): Taxable properties in all portions of a town, except that part containing a portion of a village having its own police department meeting the criteria in section 150(1) of the Town Law, are subject to taxation for the operation and maintenance of the town police department. Taxable properties within that part of a town containing a portion of a village having its own qualifying police department are not subject to taxation for town charges attributable to the operation and maintenance of the town police department. Tax rates established for town taxes must be set to reflect this distinction.

This is in reply to your inquiry concerning taxes levied to support the operation a police department in a town that contains the full territory of one village and a portion of another village. You indicate that the village that is partly within the town has its own police department, consisting of four full-time officers. The other village does not have its own police department. You ask whether town taxes to support the town police department are to be levied only against taxable properties within the area of the town outside that portion of the village having its own police department. This would result in the property owners within the village that has a police department paying lower overall town taxes than property owners in the village without its own police department, since property owners within the village with its own department would not be contributing toward the operation of the town police department.

Town Law 150(1) authorizes towns to establish a police department and appoint a chief of police and such officers and patrolmen as may be needed. Section 150(1) further provides, with two exceptions not here applicable, that "no assessment on property in any village within [the] town or partially within [the] town shall be made for the maintenance or operation of a town police department established after [January 1, 1960] pursuant to this section if any such village maintains a police department of four or more policemen on an annual full-time basis, established and maintained under the rules of civil service."1  The express language of section 150(1) makes it clear that only those properties within a village that is wholly or partly within the town and has its own qualifying village police department are not subject to town taxation for the costs of operating and maintaining the town police department (compare, e.g., Town Law 138, providing that the salaries of the town building inspector "shall be a charge upon the taxable property of that part of the town outside of any incorporated village "; Town Law 261, providing that all charges and expenses incurred under article 16 of the Town Law for zoning and planning "shall be a charge upon the taxable property of that part of the town outside of any incorporated village "; emphasis added). Taxable properties in any other village wholly or partly within the town would be subject to town taxation for the operation and maintenance of the town police department.2

The legislative history of this provision further demonstrates that only taxable properties within a village having a qualifying police department are not subject to town taxation to support the town police department. Former Governor Rockefeller, upon approving L 1959, ch 721, which added the above quoted language, stated that the amendment was "based on the theory that residents of a village should not be required to pay a town for services which are already adequately provided by the village. It recognizes that as a practical matter, town police officers generally restrict their activities to areas outside of villages having police protection." (McKinney's Session Law of 1959, p 1770).

Accordingly, taxable properties in all portions of the town, except that part containing a portion of the village having its own police department meeting the criteria in section 150(1), are subject to taxation for the operation and maintenance of the town police department. Taxable properties within that part of the town containing a portion of the village having its own qualifying police department are not subject to taxation for town charges attributable to the operation and maintenance of the town police department. The tax rates established for town taxes must be set to reflect this distinction.

October 14, 2003

Vincent J. Rossi, Jr., Esq., Town Attorney
Town of New Hartford

1.  For purposes of this inquiry, we assume the town police department was established after January 1, 1960, that the four village police officers are employed on an annual full-time basis and that the village police department is established and maintained under the rules of civil service. In the case of town police departments established prior to January 1, 1960, section 150(1) provides that the town board may enter into an agreement with any village wholly or partly within the town, which maintains a village police department of four or more policemen on an annual full-time basis, established and maintained under the rules of civil service, and determine in the agreement what part of the cost of the town police department shall be assessed against property in the village, and what part thereof shall be assessed against the property in the town outside of that village.

2.  Note that the exemption in section 150(1) does not apply to capital expenses, such as for the acquisition of land or the construction of a building, to support the town police department (24 Opns St Comp, 1968, p 742).