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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Appropriations and Expenditures (construction of permanent outdoor competitive sports facility) -- Powers and Duties (construction of permanent outdoor competitive sports facility)

PARKS AND RECREATION -- Facilities (construction of outdoor competitive sports facility by fire district)

TOWN LAW, §176(14): A fire district may not improve vacant land owned by the district with permanent outdoor competitive sports facilities such as softball fields and tennis courts.

You ask whether a fire district may improve vacant land owned by the district with permanent outdoor competitive sports facilities such as softball fields and tennis courts. If so, you also ask whether the fire district may permit such facilities to be used by residents of the district, as well as members of the fire department.

Fire districts are established for the purpose of providing fire protection and responding to certain other types of emergencies (see Town Law, §176[1], [22]; General Municipal Law, §§209, 209-b; Volunteer Firefighters' Benefit Law, §5[1]; 1992 Opns St Comp No. 92-41, p 105; 1986 Opns St Comp No. 86-34, p 55). In furtherance of these purposes, fire districts have only those powers expressly granted by statute and necessarily implied therefrom (Town Law, §176[21]; 1992 Opns St Comp Nos. 92-4, p 9 and 92-41, supra; see also 1982 Opns St Comp No. 82-242, p 302; 1981 Opns St Comp No. 81-196, p 209; 17 Opns St Comp, 1961, p 252; cf. Wells v Town of Salina, 119 NY 280).

Subdivision 14 of section 176 of the Town Law provides, in relevant part, that the board of fire commissioners of a fire district may:

[f]or the preservation, protection and storing of fire apparatus and equipment and for the social and recreational use of the firemen and residents of the district and for any of the purposes authorized by law, . . . acquire by purchase, lease, gift, devise or by condemnation, real property and erect, construct, alter, repair and equip suitable buildings, and may furnish necessary supplies for such purposes, and may lease portions thereof not required for fire district purposes [emphasis added].

Consistent with the purpose for which a fire district is established, we have long construed subdivision 14 of section 176 as not authorizing the acquisition of real property or the construction of facilities solely for the social and recreational use of the firefighters and residents of the district (see 16 Opns St Comp, 1960, p 175; 4 Opns St Comp, 1948, p 91; cf., e.g., General Municipal Law, article 13, authorizing towns, villages, cities and counties to provide playgrounds and neighborhood recreation centers). Instead, we have construed this provision as authorizing a fire district to acquire real property and construct facilities that may be used for both fire district purposes and, incidental thereto, the social and recreational use of the firefighters and residents of the district (see 16 Opns St Comp, 1960, supra; 4 Opns St Comp, 1948, supra; see also Hooker v Conte, 208 Misc 188, 143 NYS2d 750). Therefore, in our opinion, a fire district may not expend district moneys to provide a facility which may be used for recreational or social purposes unless the facility would primarily serve a fire district purpose.

The provision of facilities for certain types of physical fitness training to maintain or improve firefighters' physical condition may constitute a proper fire district purpose (see Town Law, §176[10], [11], [22]; 1992 Opns St. Comp No. 92-4, p 9; 1976 Opns St Comp No. 76-1061, unreported). We note, however, that "competitive sporting events in which volunteer firefighters are competitors" are specifically excluded from the types of physical fitness training which are considered to be in the "line of duty" and, hence, within the scope of the coverage afforded by the Volunteer Firefighters' Benefit Law (see Volunteer Firefighters' Benefit Law, §§3[3], 5[1][p]). This express exclusion suggests that the Legislature does not intend competitive sporting events to be a form of physical fitness training which may be provided as a fire district purpose. Softball and tennis are clearly "competitive sporting events" (cf. Volunteer Firefighters' Benefit Law, §5[1][m], referring to "competitive events" such as "baseball", and those "which involve physical exertion" by competitors).

Accordingly, in our view, permanent outdoor sports facilities such as softball fields and tennis courts would not serve a fire district purpose, but instead would be provided primarily for the social and recreational use of the firefighters and residents of the district. Therefore, it is our opinion that a fire district may not expend moneys to provide such facilities on vacant land owned by the district.

As an alternative, if the fire district owns unneeded vacant land, the district may sell or lease the land for fair and adequate consideration to the fire district fire department which may be able to use its own moneys to provide the desired sports facilities for its members (see Town Law, §176[14], [23]; see also 1981 Opns St Comp No. 55, p 57; cf. 1992 Opns St Comp No. 91-19, p 62, pertaining to the power of a fire district to make a gift to a fire company). The fire district may also sell or lease the property for up to ten years, either without consideration or for such consideration as may be agreed upon, to the town in which the district is located (see General Municipal Law, §72-h), and the town could provide the facilities (see, e.g., Town Law, §§81[1][d], 220[4]).

September 2, 1993
Gerard J. Comatos, Esq.
Philipstown North Highlands Fire District