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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Extension (necessity to obtain approval of the State Comptroller)
FIRE PROTECTION DISTRICTS -- Dissolution (necessity to obtain approval of the State Comptroller)
STATE COMPTROLLER -- Powers and Duties (approval of extension of fire district)

TOWN LAW, §§172-d, 173: The extension of a fire district to include the territory of a fire protection district dissolved pursuant to Town Law, §172-d is subject to the approval of the State Comptroller.

This is in reply to your letter concerning the need to obtain the approval of the State Comptroller when a fire protection district is dissolved and the area merged into an adjoining fire district. You ask whether the extension of a fire district to add the territory of the dissolved adjoining fire protection district under these circumstances is accomplished pursuant to subdivision 1 of the Town Law, §173, in which case the Comptroller's approval is generally not required, or pursuant to subdivision 2 of section 173, which requires the Comptroller's approval.

The procedures for merging a fire protection district into an adjoining fire district are contained in Town Law, §§172-d and 173. Section 172-d provides, inter alia, that whenever a fire protection district adjoins a fire district, the town board of the town in which the fire protection district is located, after public hearing, may dissolve the fire protection district and add the whole of the dissolved fire protection district to an adjoining fire district. The fire commissioners must consent in writing to the addition pursuant to section 172-d. Section 172-d further states that, whenever the town board, after public hearing, adopts a resolution approving the dissolution of a fire protection district and the addition to an adjoining fire district, the board "shall proceed in the manner prescribed in section one hundred seventy-three of this chapter for the extension of a fire district".

Subdivision 2 of Town Law, §173 provides that when a town board adopts a resolution establishing or extending a fire district, the resolution must be submitted to the State Comptroller for approval. Subdivision 1 of section 173, on the other hand, provides that certified copies of a town board resolution "establishing or extending a fire alarm or a fire protection district, or consolidating two or more adjoining fire districts or fire protection districts, or altering the boundaries of a fire district or fire protection district, or dissolving a fire district, a fire alarm or fire protection district" must be filed with the county clerk and the State Comptroller. Subdivision 1, however, does not require approval of the town board's resolution by the Comptroller (cf. Town Law, §170[3], relative to the establishment and extension of fire alarm and fire protection districts situated within certain towns within the Adirondack Park).

The references in subdivision one of section 173 to consolidation of adjoining fire districts and fire protection districts and to alteration of the boundaries of a fire district, relate to proceedings to consolidate two or more adjoining fire districts or fire protection districts pursuant to Town Law, §§172 and 172-b, and to proceedings pursuant to section 172-a to alter the boundaries of two or more adjoining fire districts. The proceeding under 172-d to dissolve a fire protection district and add the territory to an adjoining fire district is distinct from the type of proceedings enumerated in subdivision 1 of section 173. Therefore, the provision in section 172-d requiring a town board to proceed in the manner prescribed in section 173 for extension of a fire district can only be intended to refer to the procedure in subdivision 2 of section 173 which, as noted, requires the Comptroller's approval.

This conclusion is further supported by the last paragraph of section 172-d and the legislative history of section 172-d. The last paragraph of section 172-d provides that the fire protection district is, in general, deemed dissolved and the territory added to the fire district upon adoption by the town board of "an order providing therefor, pursuant to subdivision four of section one hundred seventy-three". Subdivision 4 of section 173 refers an order of the town board establishing the extension adopted after "the state comptroller shall grant permission therefor". In addition, the Governor's approval message for section 172-d specifically notes that, unlike previous similar measures which had been vetoed, the bill which was enacted as section 172-d "provides for the approval by the State Comptroller ..." (McKinney's Session Laws of 1957, p 1885).

Accordingly, it is our opinion that the extension of a fire district to include the territory of a fire protection district dissolved pursuant to Town Law, §172-d is subject to the approval of the State Comptroller.

December 28, 1992
John Maier, III, Esq., Town Attorney
Town of Roxbury