Opinion 90-38

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

STREETS AND HIGHWAYS -- Seasonal Limited Use Highway (effect of subsequent construction of residence on)

HIGHWAY LAW, §205-a: The status of a highway as a seasonal limited use highway terminates when one or more residences or commercial buildings are occupied and are dependent upon the highway for access.

We are in receipt of your letter concerning a town highway which has been designated and posted for this year as a seasonal limited use highway pursuant to Highway Law, §205-a. You ask whether the town highway superintendent is required to remove snow and ice from, and maintain the highway if, after the highway has been so designated, one or more residences or commercial buildings on the highway become occupied.

Highway Law, §205-a authorizes a town highway superintendent to annually designate, on or before November in each year, a town highway as a seasonal limited use highway. The statute defines seasonal limited use highways as "those town highways without occupied residences or commercial buildings dependent upon such highways for access" (Highway Law, §205-a[2]). Subdivision 4 of section 205-a authorizes a town to temporarily discontinue snow and ice removal and maintenance from December 1 until April 1 on any highway so designated. All seasonal limited use highways must be appropriately posted (Highway Law, §205-a[3]).

This Office has previously expressed the opinion that the requirement in section 205-a that there be no occupied residences or commercial buildings dependent upon the highway for access is a continuing one. Therefore, we have concluded that if at any time that requirement is not met, the status of the highway as a seasonal limited use highway terminates and the town thereby becomes obligated to resume snow and ice removal and other maintenance from December 1 through April 1 (1982 Opns St Comp No. 82-235, p 296; 1979 Opns St Comp No. 79-818, unreported; 31 Opns St Comp, 1975, p 162).

Accordingly, it is our opinion that if one or more residences or commercial buildings on the town highway in question become occupied after the highway has been designated as a seasonal limited use highway, and the residences or buildings are dependent upon the highway for access, the town then becomes responsible for removal of snow and ice from, and maintenance of, the highway for the period of December 1 through April 1.

September 25, 1990
Livingston S. Latham, Esq., Attorney at Law
Town of Masonville