Can voters in a New York village or fire district force a referendum on whether the fire district contracts with the village for fire protection?

Plain-English summary

Endicott has a paid professional fire department. The neighboring West Endicott Fire District relies on volunteers. Residents in both jurisdictions asked whether they could petition for a public referendum to make the fire district contract with Endicott for paid fire protection. The village attorney sought an AG opinion on whether that path was available.

The AG said no. New York follows a foundational rule articulated by the Court of Appeals in Matter of McCabe v Voorhis: direct legislation by referendum exists in municipalities only when the Legislature has expressly authorized it. Representative government is the rule; direct popular votes are the exception, and they require statutory grants.

Town Law Article 11 governs fire districts. It does authorize referenda for specific high-stakes decisions: establishment and extension of fire districts (§ 170(1), (4)); dissolution of existing water districts (§ 171(1)); consolidation of fire districts (§ 172); consolidation of fire protection districts (§ 172-b); alteration of boundaries of fire protection districts (§ 172-c). The Legislature carved out referendum authority for those structural decisions.

Section 176(22), the provision authorizing fire commissioners to contract for outside fire protection when local resources are inadequate, has no such referendum carve-out. The Legislature left the contracting decision to the judgment of the Board of Fire Commissioners. Without statutory authorization, residents have no power to force the question to a public vote.

The AG went further: the Legislature has also not made § 176(22) subject to mandatory board consideration upon citizen petition. So residents cannot even compel the Commissioners to vote on the contract idea. Consideration of a contract under § 176(22) is in the sole discretion of the Commissioners.

This is a strict reading of representative-government doctrine but a faithful one. The fire commissioners are elected; residents who want a different policy outcome have to elect different commissioners or persuade the existing board, not bypass them through referendum.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why can't residents petition for a referendum on anything they want?

Because New York's tradition (reflected in McCabe v Voorhis) is representative democracy. Citizens elect legislators and commissioners to make policy. Direct popular votes are limited to questions the Legislature has expressly opened up. Without that grant, a petition has no legal force.

What can residents do?

Persuade the Board of Fire Commissioners. Speak at meetings. Run candidates for commissioner. Lobby state legislators for an amendment to § 176(22) that would allow referenda. The political channels are open even though the referendum channel is closed.

Which Town Law sections do allow referenda?

Sections enumerated in the opinion: § 170(1) and (4) (establishment/extension of fire districts); § 171(1) (dissolution of water districts); § 172 (consolidation of fire districts); § 172-b (consolidation of fire protection districts); § 172-c (alteration of boundaries of fire protection districts). Beyond these structural decisions, the Town Law generally does not provide for petition-driven referenda.

Does this apply to villages too?

Yes, the residents-cannot-force-a-referendum rule applies across municipalities. Village Law has its own enumerated referendum provisions. If the question isn't in the statute, the petition has no force.

What about local ballot initiatives in general?

Article 9, § 1 of the New York Constitution and the Municipal Home Rule Law allow local laws subject to mandatory or permissive referendum in defined categories (changes in the form of government, increases in indebtedness, etc.). But a citizen-initiated petition outside those statutory carve-outs cannot compel a referendum.

Background and statutory framework

Matter of McCabe v Voorhis (1926) is the foundational case. The Court of Appeals held that direct legislation in cities must always rest on a constitutional or statutory grant of power. Government by representation is the rule. The doctrine has been consistent through nearly a century of municipal-law cases.

Town Law Article 11 governs fire districts and fire protection districts. Section 176 lists the broad powers of fire commissioners, including § 176(22)'s authority to contract for outside fire protection. The fact that § 176(22) is not listed among the referendum-eligible sections is the AG's controlling textual point.

The AG's prior opinions (Op Atty Gen (Inf) No. 93-13 and 1980 Op Atty Gen (Inf) 221) applied the same rule to other contexts where citizens tried to force referenda on questions the Legislature had not authorized. The 1999 opinion is a routine application of settled doctrine.

Citations

• Town Law § 170(1), (4) (establishment and extension of fire districts; referendum required).
• Town Law § 171(1) (dissolution of water districts; referendum required).
• Town Law § 172 (consolidation of fire districts; referendum).
• Town Law § 172-b (consolidation of fire protection districts; referendum).
• Town Law § 172-c (alteration of boundaries of fire protection districts; referendum).
• Town Law § 176(22) (fire commissioners' authority to contract for outside fire protection; no referendum requirement).
• Matter of McCabe v Voorhis, 243 NY 401 (1926) (direct legislation requires statutory grant; representative government is the rule).
• Op Atty Gen (Inf) No. 93-13 (referendum requires express statutory authorization).
• 1980 Op Atty Gen (Inf) 221 (same).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_99-32_pw.pdf

Original opinion text

Opn. No. 99-32
TOWN LAW, ART 11, §§ 170(1) and (4), 171(1), 172, 172-b, 172-c, 176(22).
There is no authority for the residents of a village or fire district by petition to require a referendum
which would determine whether the district enters into a contract authorizing the village to provide fire
protection in all or part of the district. There is no authority for these residents to file a petition that
would require the board of fire commissioners of the fire district to consider a contract for these services
by the village.
October 13, 1999
Joseph Sluzar, Esq.
Village Attorney
Village of Endicott
2706 East Main Street
Endicott, New York 13760

Informal Opinion
No. 99-32

Dear Mr. Sluzar:
You have inquired as to whether there is a procedure whereby residents of the Village of Endicott
(the "Village") or of the West Endicott Fire District (the "District") may, through petition, compel a
public referendum on whether the District's Board of Fire Commissioners should enter into a contract
with the Village for the latter to provide fire protection services to all or part of the District, or to require
that the District's Commissioners consider a contract for these services.
Fire districts are governed by article 11 of the Town Law. Section 176(22) of that law provides
that fire district commissioners may
contract for the furnishing of fire protection within the fire district with any . . . village . . .
fire company having its headquarters outside such fire district and maintaining adequate and
suitable apparatus and appliances for the furnishing of fire protection in such district . . .
provided the fire department of said district is, in the judgment of such fire commissioners,
unable to render adequate and prompt fire protection to such district or any area thereof.
You have advised us that the Village has a paid professional fire department. The District, which
has a volunteer fire department, is adjacent to the Village. Certain residents of the Village and the
District have expressed an interest in having the Village provide fire protection services to all or part of
the District.
The Attorney General has previously concluded that a referendum may be held by a local
government only in accordance with an express authorization by the State Legislature. See, Op Atty Gen
(Inf) No. 93-13; 1980 Op Atty Gen (Inf) 221. The rationale for this conclusion was set forth in Matter of
McCabe v Voorhis, 243 NY 401 (1926):
Direct legislation in cities [or other municipalities] must always rest on some constitutional
or statutory grant of power. Government by representation is still the rule. Direct action by
the people is the exception. 243 NY at 413.
For example, specific provisions of the Town Law make certain matters relating to fire districts
subject to referendum. See, Town Law § 170(1) and (4), § 171(1) (establishment and extension of fire
districts and dissolution of existing water districts); § 172 (consolidation of fire districts); § 172-b
(consolidation of fire protection districts); and § 172-c (alteration of boundaries of fire protection
districts).
The Legislature has not made the provisions of Town Law § 176(22) subject to referendum.
Therefore, we conclude that neither the residents of the Village nor the District may compel a
referendum on the issue of whether the District should enter into a contract with the Village to provide
fire protection services to all or a portion of the District. The Legislature explicitly has left that
determination to the judgment of the District's Board of Fire Commissioners.
Just as the Legislature has not made the provisions of Town Law § 176(22) subject to referendum,
it has not mandated that a board of fire commissioners consider a contract upon the receipt of a petition
requesting it to do so. Consideration of a contract is in the sole discretion of the Commissioners.
Therefore, we further conclude that the District's Board of Fire Commissioners may not be compelled,
by petition of the residents of the Village or the District, to vote on this issue.
The Attorney General renders formal opinions only to officers and departments of the State
government. This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
WILLIAM E. STORRS
Assistant Solicitor General