Opinion 98 - 14


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Municipal Funds (authority to supersede town budget procedures) -- Pre-emption (town highway budget estimates)

SUPERINTENDENT OF HIGHWAYS -- Powers and Duties (submission of budget estimates)

TOWNS -- Budget (submission of budget estimates by the highway superintendent)

TOWN LAW, §§104, 106; HIGHWAY LAW, §141; MUNICIPAL HOME RULE LAW, §10(1): The town highway superintendent's annual budget estimate must specify the four major categories as set forth in Highway Law, §141 and further must be in such form and contain such information as the budget officer prescribes. A town may not, by local law, supersede these budget estimate requirements.

You ask whether the annual budget estimate submitted by a town highway superintendent may set forth only the following two categories: (1) the amounts proposed to be appropriated and to be raised by real property taxes for townwide purposes; and (2) the amounts proposed to be appropriated and to be raised by real property taxes for town outside village purposes.

Article 8 of the Town Law (§100 et seq.) contains provisions relative to the town budget process. Town Law, §104 provides generally that the head of each adminstrative unit in a town must submit annually to the town budget officer, on or before September 20, an estimate of revenues and expenditures of the administrative unit for the ensuing fiscal year. Estimates must be submitted in such form and contain such information as prescribed by the budget officer (Town Law, §104[1]). If the head of an administrative unit fails to submit an estimate by the designated date, the budget officer is required to prepare an estimate for the administrative unit (Town Law, §104[2]). Upon completion of the review of the estimates, the budget officer must prepare a tentative budget in the form prescribed in and in conformance with Town Law, §107 (Town Law, §106[2]). Section 107 provides that the preliminary budget shall be in the format prescribed by the State Comptroller and shall show, by funds, among other things, proposed appropriations and estimated revenues in accordance with the classification of accounts prescribed by the State Comptroller pursuant to article 3 of the General Municipal Law.(1)

Highway Law, §141 contains requirements with respect specifically to the estimate of expenditures for highways and bridges. Section 141 provides that the estimate of expenditures for highways and bridges, to be submitted by the town highway superintendent as required by Town Law, §104, must specify the following: (1) the amount of money necessary to be levied and collected for the repair and improvement of highways; (2) the amount of money necessary to be levied and collected for the repair and construction of bridges having a span of five feet or more; (3) the amount of money necessary to be levied and collected for the purchase, repair and custody of certain equipment, tools and implements; and (4) the amount of money necessary to be levied and collected for the removal of obstructions caused by snow and for other miscellaneous purposes.(2)

Based on the foregoing, pursuant to section 141, the highway superintendent's annual budget estimate must specify the four major categories as required in that section (see also Albany Area Builders v Town of Guilderland, 74 NY2d 372, 329, 547 NYS2d 627, 630; Highway Law, §§277 and 285-a). Further, the estimate must be in such form and contain such information as prescribed by the budget officer. It may not include merely the total amounts to be appropriated and levied and collected on a townwide and town outside village basis.(3)

We note that, in our opinion, a town may not, pursuant to its home rule powers, supersede the requirements of section 141 of the Highway Law or the above-referenced requirements of Town Law, article 8. Municipal Home Rule Law, §10(1) 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 (id.).

The doctrine of pre-emption, however, represents a fundamental limitation on home rule powers (Albany Area Builders, supra). 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 citing, inter alia, Highway Law, §141 and provisions of article 8 of the Town Law). Further, while towns generally may supersede provisions of the Town Law relating to the property, affairs or government of the town or other matters in relation to which and to the extent to which the town is authorized to adopt local law by section 10 of the Municipal Home Rule Law, §10[1][ii][d][3], this grant of authority generally does not extend to town finances as provided in article 8 of the Town Law.

Accordingly, the town highway superintendent's annual budget estimate must specify the four major categories set forth in Highway Law, §141 and further must be in such form and contain such information as the budget officer prescribes. A town may not, by local law, supersede these budget estimate requirements.

August 10, 1998
Harold H. Malkmes, Superintendent of Highways
Town of Brookhaven

1. The budget officer's form should elicit information in the estimates necessary to ensure compliance with the requirements of Town Law, §§106 and 107 (see Office of State Comptroller, Financial Management Guide for Local Governments, Subsection 1.0020).

2. The amounts specified in the estimate are subject to the limitations on amounts to be raised by tax as prescribed in Highway Law, §271.

3. Prior to 1983, the Uniform System of Accounts prescribed by the State Comptroller required that individual funds be maintained for each of the four highway categories referenced in section 141. An amendment to the System in 1983 removed the requirement for separate funds. The amendment requires instead that only two funds be established (one townwide and one town outside village) to account for the four categories (see Highway Law, §277, with respect to whether real property taxes for a particular category are raised on a townwide or town outside village basis).