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Volume 11 - Opinions of Counsel SBRPS No. 79

Opinions of Counsel

Volunteer firefighters and volunteer ambulance workers exemption [Jefferson and St. Lawrence Counties] (service requirement) (mutual aid) - General Municipal Law, § 209-j; Real Property Tax Law, § 466-f:

A member of a volunteer firefighting company or volunteer ambulance corps who resides in a town which receives services from such company only on a mutual aid basis is not eligible for the partial exemption based upon a minimum of five years service in a volunteer firefighting company or volunteer ambulance corps.

Our opinion has been sought concerning the volunteer firefighters and volunteer ambulance workers exemption for Jefferson and St. Lawrence Counties (Real Property Tax Law, § 466-f; added L.2005, c.208). {1}  The question is whether a member of a volunteer company which provides service only on a mutual aid basis to a town in which the volunteer resides may qualify for the exemption based upon a minimum of five years service in such company (RPTL, § 466-f(2)). {2}  In our opinion, the member does not.

The statute provides: “Such exemption shall not be granted to an enrolled member of [a volunteer company] unless: the applicant resides in the city, town, or village which is served by such [company]” (RPTL, § 466-f(2)(a)). In construing identically worded language then applicable to Suffolk County’s volunteer exemption (RPTL, § 466 c(2)(a)), {3} in 11 Op.Counsel SBRPS No. 31, we opined:

It seems clear under section 466-c(2) that a volunteer who serves in a town where he does not reside cannot receive an exemption from the town in which he lives. First, section 466 c(2)(a) requires that “the applicant reside[] in the city, town, village or school district served by” the volunteer fire company or department or volunteer ambulance service company (emphasis added). More fundamentally, it is axiomatic that one town cannot dictate to another that it exempt its residents from its taxes.

The question, then, is the effect of mutual aid on the volunteer exemptions, that is, whether mutual aid service alone is sufficient to warrant granting the exemption. Mutual aid programs in counties are authorized by section 209-j of the General Municipal Law (see, 26 NY Jur2d, Counties, etc., § 955). In construing section 209-j, the Attorney General wrote, “It appears that the statute was intended to authorize plans through which various municipalities within a county would provide aid to one another subject to supervision or coordination by the county” (Op.Atty.Gen. I 95-47).

“Mutual aid” for purposes of fire protection, has been defined as “Organized, supervised, coordinated, reciprocal assistance in which personnel, equipment and physical facilities of fire departments, regardless of type or size, are utilized for fire or other public emergency in which the services of firemen would be used throughout the State of New York and contiguous areas” (9 NYCRR § 205.1). Section 209(1) of the General Municipal Law authorizes “[t]he fire department of any city, village or fire district . . . [to] answer calls for assistance outside the area regularly served and protected by such fire department. . . .”

As to ambulance service, Policy Statement No. 95-04 of the NYS Department of Health’s Bureau of Emergency Medical Services (posted on that Department’s website) states: “From time to time, to meet peak demand or extraordinary resource utilization, it may be necessary to request assistance to answer a call or provide additional resources. This is the concept and intent of EMS mutual aid.”

It seems clear that mutual aid is a concept whereby one municipality (often through its volunteer company) offers reserve resources to another municipality and vice-versa. We have been advised that if Volunteer Fire Company A’s members and equipment respond to a call, Volunteer Fire Company B, with which Company A has a mutual aid agreement, may be called upon to (1) respond to assist Company A should the emergency require more resources than Company A can provide or (2) be ready to provide its services within Company A’s regular service area should another emergency call be received by Company A while it is still responding to the first call. We also understand, moreover, that the mutual aid concept may extend beyond adjacent towns (the cited Attorney General’s opinion concluded that a county may enter into a mutual aid agreement with another State).

In our opinion, the intent of the drafters of RPTL, section 466-f(2) (and the others), is to encourage enlistments within the local volunteer company. If an individual resides in a town, but does not belong to a company that serves such town, except on a mutual aid basis, we believe that individual does not satisfy the current requirements of section 466-f(2) of the RPTL.

December 2, 2005

{1}  This is one of numerous similar (but not identical) exemptions which have been enacted in recent years, generally on a county-by-county basis, and which are currently numbered (often redundantly) as section 466-a through 466-g. [Ed. note:  Additional counties have been added and enumerated as section 466-h or 466-i.]

{2}  Note that we are not addressing the provisions of the lifetime exemption authorized for 20 year members of a Jefferson or St. Lawrence volunteer company (RPTL, § 466-f(3)). We note, in passing, that that subdivision, unique among the numerous volunteer exemptions enacted to date, permits residence anywhere within the State, the others all requiring residency within the particular county (or counties) for which the exemption was enacted.

{3}  The Suffolk County provision has since been amended to permit residency anywhere within a town (L.2004, c.9).