Informal Opinion No. ( 1989 )

Benjamin A. Russell, Esq. Fire Department Attorney, Central Square

You have asked whether the certificate of incorporation of the Village of Central Square Fire Department must be amended.

You explain that the fire department was incorporated several years ago under the Membership Corporation Law and the certificate of incorporation limits the scope of operation of the department to the Village of Central Square and also provides that members of the board of directors must be residents of the village. You desire that directors be permitted to reside outside the village and that the department be authorized to serve areas outside the village.

There is authority for including these restrictions in the certificate of incorporation. Under section 1402(a) of the Not-For-Profit Corporation Law, the certificate of incorporation of a fire corporation is required to state the precise boundaries of the territory in which the corporation intends to operate. The certificate of incorporation of any not-for-profit corporation may set forth any provision regulating the internal affairs of the corporation (id., § 402[c]). A requirement that directors reside in the village falls within this grant of authority.

In that both provisions of your certificate of incorporation have a basis in law, it is necessary that you take the required steps to amend the certificate of incorporation (id., §§ 801, et seq.).

We conclude that a village fire corporation's certificate of incorporation must be amended to permit directors to live outside the village and to permit the corporation to operate outside the village.