Opinion 92-19


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

 
ZONING AND PLANNING -- Subdivisions (authority of town to regulate traffic on private roads in residential subdivision)
PARKING AND TRAFFIC REGULATIONS -- Private Roads (authority of town to regulate traffic in residential subdivision)
STREETS AND HIGHWAYS -- Private Roads (authority of town to regulate traffic in residential subdivision)

TOWN LAW, §278; VEHICLE AND TRAFFIC LAW, §§1100, 1660, 1660-a, 1662-a: A town may not, pursuant to Vehicle and Traffic Law, §1660, regulate traffic on private roads within residential subdivisions consisting of detached, single-family dwellings, although the "Rules of the Road" would apply upon private roads open to public traffic. A suburban town with a population over 50,000, however, may, within the limitations expressed in Vehicle and Traffic Law, §1662-a, establish town speed limits within residential subdivisions on private roads that are open to public motor vehicle traffic.

You have inquired whether a suburban town with a population of over 400,000 according to the 1990 federal census may regulate traffic in residential subdivisions on private roads open to public traffic. You state that there are residential subdivisions in the town where the roads shown on the subdivision maps have been partially completed, but the town has not yet accepted dedication of the roads. These subdivisions consist of detached, single-family dwellings.

The authority of a town to regulate motor vehicle traffic derives primarily from the Vehicle and Traffic Law (see also Town Law, §130[7]). The Vehicle and Traffic Law is applicable and uniform throughout the State, and prohibits municipalities from enacting conflicting local regulations, except as expressly authorized (Vehicle and Traffic Law, §1600).

Article 41 of the Vehicle and Traffic Law (§§1660-1664) relates to the regulation of traffic by towns and grants authority to towns to adopt various traffic regulations. Section 1660 is a general enabling statute for towns, and details numerous traffic regulating actions a town is authorized to take. Section 1660 applies to "highways outside of villages", but not including State highways maintained by the State except with respect to certain regulations.

Section 1640 of the Vehicle and Traffic Law is an analogous statute authorizing cities and villages to regulate traffic with respect to "highways". The term "highways" is defined therein expressly to include "private roads open to public motor vehicle traffic". Similarly, section 1662-a of the Vehicle and Traffic Law authorizes certain towns to establish speed limits on certain "highways" including specifically "private roads open to public motor vehicle traffic". Unlike Vehicle and Traffic Law, §§1662-a and 1640, however, section 1660 does not define "highways" to include "private roads open to public motor vehicle traffic". Since Vehicle and Traffic Law, §§1640 and 1662-a relate to subjects similar to that addressed in section 1660, it is apparent that the omission of "private roads open to public motor vehicle traffic" from the definition of "highways" in section 1660 is intentional (cf. McKinney's Consolidated Laws of NY, Book 1, Statutes §240). Therefore, it is our opinion that a town does not have authority to apply the traffic regulations in section 1660 on private roads. We note, however, that the so-called "Rules of the Road" contained in Title VII of the Vehicle and Traffic Law (§1100 et seq.) apply upon "private roads open to public motor vehicle traffic" (§1100[a]).

The roads within a residential subdivision remain private roads until an offer of dedication is accepted by the town board. Town Law, §278(3) provides that every street shown on a filed or recorded plat "shall be deemed to be a private street until such time as it has been formally offered for cession to the public and formally accepted as a public street by resolution of the town board, or alternatively until it has been condemned by the town for use as a public street". Town Law, §278(1) provides that the filing of a subdivision plat in the office of the county clerk or register shall constitute a continuing offer of dedication of the streets, highways and parks shown on the plat unless the owner of the land or his agent adds to the plat a note to the contrary.

According to the inquiry, the town contains residential subdivisions at various stages of development. In many instances, the roads within a subdivision have been partially improved and are used by the public for access to homes constructed within the subdivision, notwithstanding that the roads have not been completely improved according to the town's specifications. In some subdivisions, the developer has defaulted before completion, and the town has brought suit to recover on the performance bond (see Town Law, §277[1]). In all cases, however, the roads within these subdivisions have been neither accepted by resolution nor condemned as a public street and, therefore, remain private roads. Accordingly, the town does not have authority to apply the traffic regulations authorized by Vehicle and Traffic Law, §1660 to these roads. As noted, however, the "Rules of the Road" would apply to the roads in question if they are open to public traffic.

We note that, in our opinion, a town may accept dedication of streets in a subdivision prior to completion of the streets. We have expressed the opinion that a town has discretionary authority to accept dedication prior to completion and to complete work on the streets on condition that the subdivider remains liable on his bond to pay for completing the streets (1977 Opns St Comp Nos. 77-614, 77-145, both unreported; 25 Opns St Comp, 1969, p 107). Thus, if the town so accepts a road prior to completion, it could then regulate the road as a town highway pursuant to section 1660.

Although the town may not apply traffic regulations generally on private roads pursuant to Vehicle and Traffic Law, §1660, the town may be able to establish speed limits on some private roads. As noted above, Vehicle and Traffic Law, §1662-a defines "highways" to include "private roads open to public motor vehicle traffic". Section 1662-a authorizes any suburban town and any town having a population over 50,000 to establish speed limits subject to certain limitations. Since the town in question is a suburban town with a population over 400,000, section 1662-a authorizes the town to establish speed limits, subject to the limitations described in the statute, on private roads within subdivisions if such roads are open to public motor vehicle travel. The determination whether a private road is open to public traffic is a factual question to be determined at the local level.

Finally, we note that Vehicle and Traffic Law, §1660-a, authorizes a town, at the written request of the owner or person in charge, to regulate traffic within certain private complexes or areas, including a "private apartment house complex" and a "private condominium complex". In our opinion, however, this statute is not applicable here because a residential subdivision consisting of detached, single-family dwellings does not constitute a private apartment house complex and we are informed that none of the subdivisions involved contain condominiums.

June 29, 1992
Philip H. Sanderman, Esq., Chief Deputy Town Attorney
Town of Brookhaven