Opinion 98 - 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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

LOCAL LAWS -- Pre-emption (funding town highway functions) -- Streets and Highways (funding town highway functions)

MUNICIPAL COOPERATION -- Streets and Highways (town repair and maintenance of village streets); (source of revenues to fund town services on village streets)

STREETS AND HIGHWAYS -- Highway Department (town repair and maintenance of village streets) -- Repairs (by town of village streets) -- Snow Removal (by town on village streets)

VILLAGE LAW, §6-602; HIGHWAY LAW, §142-c; GENERAL MUNICIPAL LAW, §119-o; MUNICIPAL HOME RULE LAW, §10(1): A town may not raise town taxes within a village to generate revenues to reimburse the town for the cost of repairs and maintenance of village streets performed by the town pursuant to a contract with the village.

This is in reply to your letter concerning a contract between a town and a village for the repair and maintenance of village streets. You ask whether the town may raise town taxes within the village to generate revenue to reimburse the town for the cost of these contractual services.

Village Law, §6-602 provides that the streets and public grounds of a village constitute a separate highway district under the exclusive control and supervision of the village board of trustees or other officers to whom such control is delegated by the board. Highway Law, §142-c provides that a town board may authorize the town highway superintendent, upon such terms and conditions agreed to by the town board and village board of trustees, to remove snow and ice from streets and sidewalks in any village within the town, repair streets and sidewalks within any village within the town and permit the use of town highway machinery, tools and equipment in or by any village within the town (see also General Municipal Law, §119-o; 1989 Opns St Comp No. 89-57, p 128; 1983 Opns St Comp No. 83-172, p 217; 1982 Opns St Comp No. 82-136, p 170). Thus, a town and village may provide, by contract, for the town to repair and maintain village streets.

There is no requirement in section 142-c that consideration be paid to the town for these services (1983 Opns St Comp No. 83-172, p 217; 1973 Opns St Comp No. 73-912, unreported; see Memorandum of the Office for Local Government, L 1962, ch 561, McKinney's Session Laws of 1962, p 3568; Comerseki v City of Elmira, 308 NY 248). If consideration is to be paid, the statute does not prescribe a method for determining the amount of such consideration (Opn No. 83-172, supra). Therefore, the town and village may agree to a reasonable formula or method for determining the charge, including, but not limited to, cost per mile (id.).

Village streets, however, do not constitute part of the town highway system (Highway Law, §§3[5], 140[1]; 2 Opns St Comp, No. 1946, p 38) and, consequently, towns are not authorized to levy taxes upon village residents for the maintenance of village streets (1982 Opns St Comp No. 82-136, p 170; 23 Opns St Comp, 1967, p 780). Moreover, an agreement for a town to repair and maintain village streets does not transform a village street into a town highway and, since there is no authority for a town to directly tax village property owners to fund the village's agreed upon consideration for the town's services, the agreement may not authorize the levy of town taxes within the village to generate revenues to reimburse the town for the cost of repairing and maintaining village streets (see Opn No. 82-136, supra). Rather, the initial expenses incurred to perform work under the contract would be paid from town highway fund moneys and, if the agreement provides for consideration, all or part of the expense would be reimbursed to the town highway fund by contractual payments of village funds from the village (Opn Nos. 83-172 and 82-136, supra; Highway Law, §142-c[5]).

Further, it is our opinion that a town may not, by local law, authorize the taxation of property owners within the village to reimburse the town for the cost of repair and maintenance of village streets. Municipal Home Rule Law, §10(1)(i) authorizes local governments to adopt local laws, not inconsistent with any general law or the Constitution, relating to their property, affairs or government. In addition, except to the extent restricted by the State Legislature, local governments may adopt local laws, not inconsistent with general laws and the Constitution, relating to certain enumerated subjects, whether or not they relate to property, affairs or government (Municipal Home Rule Law, §10[1][ii]).

The doctrine of pre-emption, however, represents a fundamental limitation on home rule powers (Albany Area Builders v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627). Where the State Legislature has clearly evinced a desire to pre-empt an entire field and preclude any further regulation, a local law regulating the same subject matter is considered inconsistent and will not be given effect (Incorporated Village of Nyack v Daytop Village, Inc., 78 NY2d 500, 577 NYS2d 215; see also Albany Area Builders, supra). The intent to pre-empt may be express (see Jancyn Manufacturing Corp. v County of Suffolk, 71 NY2d 91, 524 NYS2d 8) or may be inferred from a comprehensive, detailed statutory scheme (see Daytop Village, supra; Albany Area Builders, supra).

The Court of Appeals has held that the State Legislature has enacted a comprehensive and detailed regulatory scheme in the field of highway funding, including how towns are to budget and raise money for highway improvements and repairs, which pre-empts local legislation on that subject (Albany Area Builders, supra). It is our opinion, therefore, that the local legislation in this area is pre-empted by the State statutory scheme.

Accordingly, a town may not raise town taxes within a village to generate revenues to reimburse the town for the cost of repairs and maintenance of village streets performed by the town pursuant to a contract with the village.(1)

June 17, 1998
Lee J. Konkle, Supervisor
Town of Kinderhook

1. We note that there are other statutory provisions which the town may wish to consider. Highway Law, §277 exempts property within villages which form a separate highway district maintained at village expense from town taxes for the repair and improvement of town highways, and authorizes, but does not require, a town to exempt property within villages from town taxes for town highway equipment and town highway snow removal and miscellaneous expenditures (see DuBois v Town of New Paltz, 35 NY2d 617, 369 NYS2d 506). In addition, as noted, a town may agree to repair and maintain village streets under Highway Law, §142-c without consideration. Thus, a town board could determine not to exempt villages from town taxes for town highway equipment and town highway snow removal and miscellaneous expenses, and separately agree to repair and maintain village streets for no consideration (see Opn No. 73-912, supra). The town would not be taxing village property owners for repair and maintenance of village streets, but rather, taxing them for town highway equipment, and town highway snow removal and miscellaneous expenses. We note that the town board's decision to not exempt village taxpayers from town taxes for town highway equipment and town highway snow removal and miscellaneous expenses is a legislative decision of the town board (see DuBois, supra). Thus, we do not believe it may not be made a term or condition of any agreement to perform village street repair and maintenance without charge (see, gen., 10 McQuillin, Mun. Corps, §29.07). We also note that in towns with more than one village, compliance with constitutional equal protection guarantees requires that similarly situated villages be treated alike with respect to this exemption (see, e.g. 1978 Opns St Comp No. 78-85, unreported).