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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Taxes (authority to use general fire district funds to pay amounts due under contract for hydrants serving a zone)
FIRE HYDRANTS -- Fire Districts (authority to use general fire district funds to pay amounts due under contract for hydrants serving a zone); (authority to budget amounts due for preceding and current year under hydrant contract)

TOWN LAW, §176(12),(27): General fire district funds may not be used to pay amounts due under a contract for the use of hydrants which serve only a zone within the district. Under the facts presented, the fire district annual budget may include an amount sufficient to pay for the use of hydrants under a contract for both the preceding fiscal year and the current fiscal year.

You ask about the permissible means of financing an expenditure to be made on behalf of a zone established within a fire district.

You indicate that the board of fire commissioners of the fire district established, pursuant to the provisions of section 176(27) of the Town Law, a zone for a portion of the district which is served by the hydrants of a private water company. Further, you indicate that the fire district's current contract with the water company provides for a payment, on or before March 1 of each year, for the use of the hydrants in the preceding year. The water company has, however, requested that the contract be amended to provide that payments be made at the end of each quarter for the use of the hydrants in the current year. You state that the proposed amendment would necessitate that the fire district raise, in one year, the amount required to pay for the use of the hydrants in two years: the amount payable on or before March 1 for the entire preceding year and the amount necessary to make the quarterly payments payable in the current year.

You ask whether the board of fire commissioners would be authorized to use general fire district funds to make any of the payments under the contract for hydrants within the zone. In the alternative, you ask whether the annual budget of the fire district may include an amount sufficient to pay for the use of the hydrants in both the preceding and the current year. We note that the fire district utilizes cash basis accounting.

Section 176(12) of the Town Law authorizes a board of fire commissioners to contract for "the furnishing, erection, maintenance, care and replacement of fire hydrants." The cost involved in procuring the use of fire hydrants is a charge against the fire district to be paid by fire district taxation (1976 Opns St Comp No. 76-431, unreported; 9 Opn St Comp, 1953, p 204). That cost need not, however, be borne by all the residents of the fire district where some will receive no benefit.

Pursuant to section 176(27) of the Town Law, the board of fire commissioners has the power to establish one or more zones within the fire district with different rates of taxation. One specific purpose of such zoning provided for in section 176(27) is "to permit one rate of taxation...for that portion of the district which does not have water hydrants and another rate for that portion of the fire district which has water hydrants." Once a zone has been established, section 176(27) provides that "the annual statement of expenditures...shall specify the amounts to be raised by taxation in said zone or zones, which are not to be a general charge against all of the property of the fire district, and such amounts shall be levied only upon the property included in such zone or zones" (emphasis added).

Thus, based on the language of section 176(27), the cost of a contract to provide a special benefit to a zone within the fire district is to be a charge only on those properties included within the zone. Consequently, it is our opinion that, even if general fire district funds were available, those funds could not be used to pay amounts due on a contract for the use of hydrants which serve a zone established within the district (cf. General Municipal Law, §9-a, authorizing municipalities, but not fire districts, to make inter-fund advances under certain circumstances).

In relation to the inclusion of an amount in the annual fire district budget sufficient to pay for the use of the hydrants in the zone for the preceding and the current year, we believe that since the expenditures would both be made in the current year, there is no legal impediment to raising the necessary amount in the current year's fire district budget (see Town Law, §181). The amount included in the budget for payments under the contract would, of course, be levied only upon the properties within the zone (see Town Law, §176[27]).

Finally, we note that the board of fire commissioners is authorized, after a public hearing, to abolish a zone within the fire district (Town Law, §176[27]). Any contractual obligation incurred for the use of hydrants after the abolition of the zone would be a charge against the entire fire district (Opn No. 76-431, supra).

February 12, 1992
Wayne L. Burton, Esq., Attorney and Counselor at Law
Vischer Ferry Fire District