Opinion 90-10


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.


SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (trimming or removal of trees)
LOCAL LAWS -- Streets and Highways (highway superintendent's duty to trim or remove trees) -- Transfer of Functions (highway superintendent's duty to trim or remove trees)
TOWN BOARDS -- Powers and Duties (conservation advisory councils and conservation boards)

HIGHWAY LAW, §§140(1),(2), 153; GENERAL MUNICIPAL LAW, §§239-x, 239-y; MUNICIPAL HOME RULE LAW, §10(1): Neither a conservation advisory council nor a conservation board is authorized to prevent the highway superintendent from trimming or removing trees which the highway superintendent determines to be a danger to users of a town highway. A town board may not, by resolution or local law, empower either type of body to prevent or impede the highway superintendent's performance of that duty.

You ask whether a town highway superintendent may remove trees posing a danger to users of town highways notwithstanding the objection of the town's conservation advisory council.

Generally, a town is under a "continuing" and "non-delegable" duty to maintain its highways in a reasonably safe condition (see Kierman v Thompson 73 NY2d 840, 537 NYS2d 122; Lopes v Rostad, 45 NY2d 617, 412 NYS2d 127; 1989 Opns St Comp No. 89-22, p 48). The duty to maintain highways in a reasonably safe condition extends not only to the road surface and shoulders, but also applies to other conditions which reasonably could be expected to result in injury and damage to the public (Sanchez v Lippincott, 89 AD2d 372, 455 NYS2d 457), including trees which overhang the road (see Harris v Village of East Hills, 41 NY2d 446, 393 NYS2d 691; Tagg v City of Lockport, 228 AD 319, 238 NYS 662, affd 254 NY 582; Embler v Town of Wallkill, 132 NY 222; 1989 Opns St Comp. No. 89-21, p 45; 1985 Opns St Comp, No. 85-6, p 6; see also Luceri v County of Orange, 144 AD2d 444, 534 NYS2d 9). Therefore, a town is under a duty to make a reasonable inspection of trees along its highways and to trim and remove such trees or portions thereof which constitute a danger to users of its highways (see Jones v State, 33 Misc 2d 959, 227 NYS2d 297).

The town highway superintendent is the official charged with the care and maintenance of town highways (Highway Law, §140[1],[2]). The highway superintendent is also vested with control of all shade trees in town highways (Highway Law, §153; cf. Highway Law, §322, generally requiring the written consent of the highway superintendent to cut down, remove ordestroy a growing tree within the bounds of a town highway). Therefore, we have previously concluded that, as part of these statutory duties, the highway superintendent is responsible for removing dangerous trees or overhanging or broken branches from trees, within the bounds of town highways (see Opn No. 89-21, supra; 1959 Opns St Comp, No. 59-589, unreported; 4 Opns St Comp, 1948 p 360; 3 Opns St Comp, 1947 p 88; see also Highway Law, §141[1]; cf. Highway Law, §319, authorizing the cost of removing certain highway obstructions to be charged to adjacent property owners).

General Municipal Law, §239-x(1) authorizes a town board to establish a conservation advisory council. The general purpose of a conservation advisory council is to advise in the development, management and protection of the town's natural resources (General Municipal Law, §239-x[1]). In furtherance of this purpose, a conservation advisory council is required to direct itself toward accomplishing a number of more specific tasks which include, among other things, conducting research into the land area of the town (General Municipal Law, §239-x[1][a]); cooperating with other official municipal bodies in the area of community planning (General Municipal Law, 239-x[1][b]); keeping an inventory and map of all open areas within the town with the plan of obtaining information pertinent to proper utilization of such land (General Municipal Law, §239-x[1][d]); and keeping an inventory and map of all open marsh lands, swamps and all other wet lands, and recommending a program for ecologically suitable utilization of such areas (General Municipal Law, §239-x[1][e]). A conservation advisory council is further required to carry out any other duties, tasks or responsibilities, consistent with the objectives of General Municipal Law, Article 12-F, assigned to it by resolution of the town board (General Municipal Law, §239-x[1][g]).

General Municipal Law, §239-y(2) authorizes a town board, under certain circumstances, to convert a conservation advisory council into a conservation board. The purpose of a conservation board is to further assist the town in the development of sound open area planning and assure preservation of natural and scenic resources by, among other things, reviewing applications which seek approval for the use or development of any open space area listed in the town's "open space index" and making recommendations with respect to such applications to the appropriate town board, department, or administrative body (General Municipal Law, §239-y[3][a]). A conservation board is also required to perform any duties assigned to it by resolution of the town board (General Municipal Law, §239-y[3][d]) and is authorized to exercise any of the functions and responsibilities granted to conservation advisory councils (General Municipal Law, §239-y[4][a]).

In our opinion, there is nothing in the Highway Law or in the above-described provisions of section 239-x or 239-y of the General Municipal Law which expressly or by necessary implication confers upon either a conservation advisory council or a conservation board the power of approval over the town highway superintendent's decision to trim or remove overhanging trees or portions thereof which the highway superintendent determines to be a danger to users of a town highway. We note that it may be possible pursuant to section 239-x or 239-y for a town board, by resolution, to authorize the conservation advisory council or conservation board to assist the highway superintendent, at the superintendent's request, in evaluating whether particular trees pose a danger to users of town highways and the options available for alleviating the danger. We do not believe, however, that such a resolution can empower either body to prevent the highway superintendent from discharging his statutory duty to trim or remove such trees because neither section 239-x nor 239-y of the General Municipal Law authorizes a town board, by resolution, to restrict or qualify the highway superintendent's duty.

As to whether a town board, by local law, may empower a conservation advisory council or conservation board to prevent a town highway superintendent from trimming or removing overhanging trees or portions thereof which the superintendent determines to be a danger to users of a town highway, we note that Municipal Home Rule Law, §10(1) authorizes a local government to adopt and amend local laws, not "inconsistent" with the Constitution or any "general law", relating to its property, affairs or government (Municipal Home Rule Law, §10[(1)][(i)]) and, with certain exceptions, relating to the powers and duties of its officers and employees (Municipal Home Rule Law, §10[1][ii][a][1]), the care and management of its highways (Municipal Home Rule Law, §10[1][ii][a][6]), the protection and enhancement of its physical and visual environment (Municipal Home Rule Law, §10[1][ii][a][11]), and the safety and well being of persons and property therein (Municipal Home Rule Law, §10[1][ii][a][12]). A local law is "inconsistent" with a general law when, among other circumstances, the local law expressly conflicts with a general law (see Jancyn Manufacturing Corp. v County of Suffolk, 71 NY2d 91, 524 NYS2d 8; New York State Club Association v City of New York) 69 NY2d 211, 513 NYS2d 349, affd 487 US 1, 108 S Ct 2225; Consolidated Edison Company v Town of Red Hook, 60 NY2d 99, 468 NYS2d 596). For this purpose, a "general law" is a State statute which in terms and in effect applies alike to, inter alia, all towns (Municipal Home Rule Law, §2[5]).

As noted above, a highway superintendent's duty to trim or remove overhanging trees or portions thereof which constitute a danger to users of a town highway is derived from Highway Law, §§140(1),(2) and 153. Since in terms and in effect these provisions of the Highway Law apply alike to all towns, they are general laws and, thus, a town board may not adopt a local law which is inconsistent with these provisions (see 1980 Opns St No. 80-251, p 70; 1972 Op St Comp No. 72-995, unreported). Further, since Highway Law, §§140(1), (2) and 153 do not condition the superintendent's actions on approval of a conservation advisory council or conservation board, a local law imposing such a condition would conflict with and, therefore, be "inconsistent" with these general laws. Accordingly, in our opinion, a town board may not adopt a local law providing that the highway superintendent's ability to trim or remove dangerous trees is subject to the approval of the town conservation advisory council or conservation board.

April 9, 1990
Drew A. Outhouse, Superintendent
Town of North Salem