Opinion 88-34


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


VEHICLE AND TRAFFIC REGULATIONS -- Towns (manner of adoption of regulations, orders and rules) -- Villages (manner of adoption of regulations, orders and rules)

VEHICLE AND TRAFFIC LAW, §§1640, 1660, 1800; TOWN LAW, §§130, 131, 133; VILLAGE LAW, §20-2002: Towns may enact traffic regulations, rules, and orders in the same manner as ordinances. Villages may enact traffic regulations, rules and orders, in the same manner as resolutions.  Opn No. 74-1224 is superseded.

You state that 21 Opns St Comp, 1965, p 532 and 1986 Atty Gen [Inf Opn] 1109 appear to be in conflict and ask for our opinion in this regard.

In 21 Opns St Comp, 1965, p 532, this Office concluded that the enactment of traffic regulations by a town pursuant to the authority of Vehicle and Traffic Law, §1660, whether it be done by ordinance, order, rule or regulation, must be accomplished in accordance with the procedures prescribed for the adoption of ordinances by Town Law, §§130 and 133. Thus, we expressed the opinion that a public hearing was required pursuant to Town Law, §130 and that after adoption of the legislation, the text thereof is required to be entered in the minutes of the town board and published as provided by Town Law, §133.

Our conclusion in 21 Opns St Comp, 1965, p 532 was based primarily upon the provisions of Vehicle and Traffic Law, §1800 and Town Law, §131. Vehicle and Traffic Law, §1800 directs, in part, that the violation of any local law, ordinance, order, rule or regulation adopted pursuant to the Vehicle and Traffic Law is a traffic infraction resulting in specific penalties, unless otherwise declared to be a misdemeanor or felony. Town Law, §131 defines a town ordinance to include a "rule or regulation of the town board for the violation of which a penalty is imposed". Accordingly, since Vehicle and Traffic Law, §1800 imposes penalties for the violation of town traffic regulations, we concluded that Town Law, §131 required all such regulations to be deemed ordinances and that such regulations must be adopted in the same manner as ordinances.

1986 Atty Gen [Inf Opn] 1109 concludes that a village may establish parking regulations pursuant to Vehicle and Traffic Law, §1640(a)(6), by order, rule or regulation, and that the procedure for these enactments is substantively the same as for the enactment of resolutions. Accordingly, it was the Attorney General's opinion that, by authority of Vehicle and Traffic Law, §1640(a)(6), neither a public hearing on notice nor publication are required with respect to the adoption of traffic regulations by a village pursuant to order, rule or regulation. In reaching this conclusion, the Attorney General relied upon Village Law, §20-2002 which in part directs that orders, rules and regulations adopted pursuant to Vehicle and Traffic Law take effect immediately upon adoption without notice or hearing.

Thus, while 21 Opns St Comp, 1965, p 532 pertains to the enactment of traffic regulations in towns and involves an analysis of the Town Law, 1986 Atty Gen [Inf Opn] 1109 pertains to the enactment of like regulations in villages under materially different provisions of the Village Law (see Village Law, §20-2002). Therefore, it is our opinion that the two opinions do not conflict. Moreover, since there is no provision in the Town Law which corresponds to Village Law, §20-2002, we find no basis to change the conclusions expressed in 21 Opns St Comp, 1965, p 532, relative to the procedures by which towns must adopt traffic regulations.

In 1974 Opns St Comp No. 74-1224, unreported, however, this Office concluded that a village which wishes to enact traffic regulations by orders, rules or regulations that take effect immediately pursuant to Village Law, §20-2002 must first adopt a local law which specifies the various categories of traffic regulations and provides a penalty for the violation thereof. In reaching this conclusion, we reasoned that enactment of a local law is necessary because Village Law, §20-2000 provides that a village, by local law, may adopt an order, rule or regulation which contains a penalty therein (see Vehicle and Traffic Law, §1800). Upon further consideration of the legislative history of Village Law, §20-2002, however, we now conclude that our Opn 74-1224 is in error and is hereby superseded.

Village Law, §20-2002 provides, in part, that village traffic orders, rules or regulations take effect immediately, "without notice or hearing," providing appropriate traffic control devices are installed. This provision was first enacted as section 94-a of the former Village Law (repealed L. 1972, ch. 892) by chapter 904 of the Laws of 1970. The purpose of the 1970 legislation was to resolve a conflict of opinion between this Office and the Department of Motor Vehicles by making clear "that [village] traffic regulations may be adopted without being treated as ordinances so far as notice, public hearing and subsequent publication are concerned" (emphasis supplied; NY Legis Ann. 1970, p 236). Although subsequent legislation recodified the Village Law (L. 1972, ch. 892) and repealed villages' authority to enact ordinances (L. 1973, ch. 974; L. 1974 ch. 1028), the language of section 94-a of the former Village Law remains unchanged in Village Law, §20-2002. Moreover, there is nothing in the legislative history of these subsequent enactments which suggests an intent to alter the procedure established by the 1970 legislation by which villages adopt traffic orders, rules or regulations.

Accordingly, it is our opinion that there is no conflict between 21 Opns St Comp, 1965, p 532 amd 1986 Atty Gen [Inf Opn] 1109. While we concur with the conclusion reached in the Attorney General's opinion relative to the adoption of traffic orders, rules or regulations by villages, it is also our opinion that, under the existing provisions of the Town Law, the procedure for a town to enact such traffic orders, rules or regulations is substantively the same as for the enactment of ordinances.

July 12, 1988
Peter D. Cook, Esq. Town Attorney
Town of Tonawanda