Opinion 90-39

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FEES -- Imposition of (by town on behalf of fire district)
FIRE DISTRICTS -- Taxes (imposition of special tax or user fee)
LOCAL LAWS -- Fees (imposition on behalf of fire district) -- Preemption (fire district finances)
TOWNS -- Powers and Duties (imposition of special tax or user fee on behalf of a fire district)

TOWN LAW, §181(1); MUNICIPAL HOME RULE LAW, §10(1)(i),(ii)(a)(9-a): A town may not impose a special tax or other charge on behalf of a fire district on properties which are exempt from fire district taxes to defray the cost of specialized equipment needed to provide fire protection services to these properties.

You ask whether a town, on behalf of a fire district, may impose a "special tax" on various properties which are exempt from fire district taxes to defray the cost of specialized equipment needed to provide fire protection services to these properties.

Town Law, §181(1) requires the board of fire commissioners of a fire district annually to prepare and file with the budget officer of each town in which the fire district is located a detailed written estimate of the amount of revenues to be received and expenditures to be made during the next fiscal year for fire district purposes and within the limitations specified in article 11 of the Town Law (see Town Law, §§176[18], 179). That section further provides that the town board shall make no change in the estimate submitted by the board of fire commissioners (see also Town Law, §105). After the annual budget has been adopted by the town board and a certified copy presented to the county board of supervisors, section 181(1) requires the board of supervisors to assess and levy the amount to be raised by tax for fire district purposes against all "taxable real property" in the district and cause the amount so assessed and levied to be collected, in the same manner, at the same time and by the same officers as town taxes are assessed, levied, and collected.

In providing that fire district taxes shall be raised against taxable property and assessed, levied and collected in the same manner as town taxes, section 181 makes it clear that such taxes may not be imposed upon property which is otherwise exempt (see, e.g., Real Property Tax Law, article 4, pertaining to exemptions; see also NY Const., art XVI, §1, prohibiting alteration or repeal of exemptions for property of non-profit religious, charitable and educational organizations). Further, there is no authority under the Real Property Tax Law or any other statute for a town, on behalf of a fire district, to impose any taxes or other charges on properties which are exempt from the tax levied pursuant to section 181 of the Town Law.

As to whether a town, by local law, may impose a "special tax" on behalf of a fire district, it is well settled that the power to assess and collect taxes is vested exclusively in the State Legislature and that a municipal corporation may exercise authority in this area only if it has been expressly delegated to the municipal corporation by the Legislature (NY Const., art XVI, §1; Sonmax v City of New York, 43 NY2d 253, 401 NYS2d 173; Mobil Oil v Town of Huntington, 85 Misc 2d 806, 380 NYS2d 466; Municipal Home Rule Law, §10[1][ii][a][8], authorizing local governments to adopt and amend local laws relative to the levy and administration of local taxes "authorized by the legislature"). Therefore, in the absence of State legislative authority, a town may not, by local law, levy a "special tax" on exempt properties on behalf of a fire district.

With respect to whether a town, pursuant to its home rule authority, may impose a fee or charge on behalf of a fire district, we note that Municipal Home Rule Law, §10(1) authorizes a "local government" to adopt and amend local laws, not inconsistent with the Constitution or any general law, relating to "its" property, affairs or government (Municipal Home Rule Law, §10[1][i], emphasis added) and, except to the extent restricted by the Legislature, in relation to a number of enumerated subjects whether or not they relate to the "property, affairs or government" of the local government (Municipal Home Rule Law, §10[1][ii]). One such enumerated subject is the "[f]ixing, levy, collection and administration of local government rentals, charges, rates or fees ..." (Municipal Home Rule Law, §10[1][ii][a][9-a]; emphasis added). For purposes of the Municipal Home Rule Law, the term "local government" includes only counties, cities, towns and villages (Municipal Home Rule Law, §2[8]). A fire district, however, is a separate public corporation distinct from a town (see Town Law, §174[7]; General Construction Law, §66) and does not have its own home rule authority (see NY Const, art IX). Therefore, the authorization for towns to adopt local laws in Municipal Home Rule Law, §10(1)(i) and (ii)(a)(9-a) relates only to the town's property, affairs or government, and to fees and charges imposed to finance certain functions of the town, and does not authorize towns to adopt local laws on behalf of a fire district.

It is significant to note that even if fire district operations were properly within the scope of a town's home rule authority, there are other reasons why a town could not exercise such authority to impose a charge or a fee for fire protection. Although we have construed Municipal Home Rule Law, §10(1)(ii)(a)(9-a) to authorize the imposition of charges of a contractual nature for the actual use of a service (see 1988 Opns St Comp No. 88-2, p 3; 1986 Opns St Comp No. 86-88, p 135), we do not believe it generally authorizes the imposition of fees or charges for fire protection services. In order for a fee or charge not to be considered a tax, it must bear a direct relationship to the cost of furnishing a special service, and not go to the support of government without relation to particular benefits provided (see Watergate II Apartments v Buffalo Sewer Authority, 46 NY2d 52, 412 NYS2d 821; Jewish Reconstructionist Synagogue of the North Shore v Incorporated Village of Rosyln Harbor, 40 NY2d 158, 386 NYS2d 198; Joslin v Regan, 63 AD2d 466, 406 NYS2d 938, affd 48 NY2d 746, 422 NYS2d 612; Mobile Oil Corporation, supra). The duty to provide fire protection services, however, is owed to the public at large and not to individuals (see, e.g., Gordon v Holt, 65 AD2d 344, 412 NYS2d 534). Thus, a fee or charge for fire protection services would not be a "visitation of the cost of special services upon the one who derives a benefit from them" (Jewish Reconstructionist Synagogue, supra, 40 NY2d at p 163, 386 NYS2d at p 200; emphasis in original), but instead would be an imposition for the support of a governmental function providing a benefit to the public at large, without particular benefit to those required to pay. Further, in other jurisdictions, charges for fire protection services have been held to be taxes or in the nature of taxes, regardless of legislative characterization, whether imposed on an ad valorem basis (see City of Fairmont v Pitrolo Pontiac-Cadillac, 308 SE2d 527, cert den 466 US 958, 104 S Ct 2169), as a flat monthly amount (City of North Little Rock v Grahm, 278 Ark 547, 647 SW2d 452), or through the use of a formula measuring the total firefighting capacity necessary to extinguish a fully involved building (Emerson College v City of Boston, 391 Mass 415, 462 NE2d 1098).

We also note that where the State Legislature has clearly evinced a desire to pre-empt an entire field, a local law regulating the same subject matter is deemed inconsistent with the State's transcendent interest, whether or not the terms of the local law actually conflict with a State-wide statute, because the operation of the local law would tend to inhibit the operation of the State's general law and thereby thwart the operation of the State's overriding policy concerns (Albany Area Builders Association v Town of Guilderland, 74 NYS2d 372, 547 NYS2d 627; Jancyn Manufacturing Corp. v County of Suffolk, 71 NY2d 91, 524 NYS2d 8). The intent to preempt need not be express (see Jancyn, supra), but may be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area (see Albany Area Builders Association, supra). We also note that a comprehensive, detailed statutory scheme may evidence an intent to preempt (id).

Article 11 of Town Law (§§170 et seq.) sets forth detailed procedures for the establishment, financing and operation of fire districts, fire protection districts and fire alarm districts. In particular, Town Law, §181, as noted, prescribes in detail the procedure for raising taxes to fund a fire district's appropriations. In Coconato v Town of Esopus, 152 AD2d 39, 547 NYS2d 953, lv den 76 NY2d 701, 558 NYS2d 891, it was held that provisions of articles 12 and 12-A of the Town Law for the financing of water districts (see Town Law, §202-b) manifested the Legislature's intent to preempt the area of financing capital improvements to town water districts (see also Municipal Home Rule Law, §10[1][ii][d][3]). In our opinion, article 11 of the Town Law similarly establishes a comprehensive scheme for financing fire districts and manifests a legislative intent to preempt local laws in this area.

Thus, a town, on behalf of a fire district, is not authorized by either the Town Law or the Real Property Tax Law to impose a "special tax" or charge upon properties which are exempt from fire district taxes.  Further, since the power to tax is vested exclusively in the State Legislature, a town may not, by local law, levy a "special tax" on exempt properties. Finally, because a town's home rule authority relates only to its own property, affairs or government and to the imposition of fees and charges for certain of its own functions, a town on behalf of a fire district, may not, by local law, impose a fee or charge on exempt properties within the district.

October 16, 1990
William J. Casilio, Town Attorney
Town of Clarence