By Peter J. Weishaar

Last November, we wrote about an amendment to Town Law section 176(23), which made it easier for fire districts to sell surplus fire equipment, vehicles or other property. Before the amendment, a fire district could not sell surplus fire equipment, vehicles or other property without voter approval unless:

  • the property was valued at less than $50,000, in which case the district’s resolution authorizing the sale would be subject to a permissive referendum; or
  • the property value did not exceed the sum of $10,000, in which case a permissive referendum was not required.

When the statute was amended, the threshold amounts for a permissive referendum were boosted from $50,000 to $100,000, and from $10,000 to $20,000 for dispositions without any referendum.  However, the amendment also added a phrase that now raises a question about what to do with equipment, vehicles or other property valued at exactly $20,000.

When the permissive referendum threshold was boosted to $100,000, the phrase “but not below twenty thousand dollars” was added to the provision requiring a permissive referendum.  Any resolution authorizing the sale of used equipment valued at $20,000 would be subject to a permissive referendum.

However, the portion of the statute governing sales not subject to a referendum was not changed beyond changing the dollar amount, so that no referendum is required as long as the value does not exceed $20,000.  Accordingly, a fire district may sell used equipment valued at $20,000 without a referendum.

Much like it is impossible for Schrödinger’s Cat to be both dead and alive, it is impossible to have a resolution authorizing the sale of used fire apparatus valued at $20,000 to be both subject to - and not subject to -  a permissive referendum.  What should a fire district do when looking to dispose of Schrödinger’s Fire Engine (i.e., used fire equipment, vehicle or other property valued at $20,000)? 

We recommend that fire districts consult with their attorney when faced with such a situation.  Also, since these resolutions seldom result in anyone ever filing a petition triggering a referendum, the safest bet is likely to assume the resolution is subject to a permissive referendum, even though it may delay the sale.

For assistance with these matters, please contact a member of our Municipal & Government practice. 

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

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