Opinion 2002 - 6


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Improvements (whether required at request of adjacent property owners based solely on highway failing to meet qualifications for designation as seasonal limited use highway) -- Seasonal Limited Use Highway (effect of existing residences occupied for part of the year on)

HIGHWAY LAW 205-a: A town highway may not be designated as a seasonal limited use highway pursuant to Highway Law 205-a if residences on that highway are occupied part of the year and are dependent upon such highway for access. The fact that a town highway fails to meet the qualifications for designation as a seasonal limited use highway, in and of itself, does not trigger any requirement under section 205-a that the town perform any upgrades or improvements on such highway at the request of adjacent property owners.

This is in response to your inquiry with regard to the designation of a dead end, unpaved town highway as a "seasonal limited use highway" pursuant to section 205-a of the Highway Law. You ask whether the highway may be so designated if there is "sporadic" usage, mainly on weekends, of certain "camps" that depend on the highway for access and, if the highway may not be so designated, whether the statute requires the upgrade and expansion of the highway, at the request of the adjoining property owners.

Section 205-a of the Highway Law governs the designation of seasonal limited use town highways. This statute authorizes a town highway superintendent to designate, on an annual basis, "a town highway" as a "seasonal limited use highway", on or before November 1 of each year (Highway Law 205-a[1]). Section 205-a provides that "[s]easonal limited use highways shall be those town highways without occupied residences or commercial buildings dependent upon such highways for access."1

Subdivision 4 of section 205-a authorizes a town to temporarily discontinue snow and ice removal and maintenance of highways so designated from December 1 until April 1 of the year the highway is so designated. All seasonal limited use highways must be appropriately posted (Highway Law 205-a[3]; see also General Municipal Law 125-a). The purpose of the statute is provide authority for towns to relieve themselves temporarily of the responsibility of maintaining roads that are of "insignificant value of use to all sectors of the town" during winter months (Sponsor's Memorandum for A. 8044, enacted as L 1975, ch 489; see also 1975 Budget Report, dated July 2, 1975, on A. 8044, enacted as L 1975, ch 489), while ensuring that occupied residences and commercial buildings remain accessible, including to emergency vehicles, even when the owners are not physically present (see Memorandum of the Association of Towns of the State of New York, dated July 2, 1975, on A. 8044, enacted as L 1975; 1982 Opns St Comp No. 82-235, p 296).

As noted, the statute requires that a highway be "without occupied residences or commercial buildings dependent upon the highway for access" in order to be designated as a seasonal limited use highway. Section 205-a does not qualify designation of seasonal limited use highways on the absence of seasonal residences, but rather based on the absence of "occupied residences". Thus, we have previously concluded that the statute applies both in cases of residences occupied year-round and residences occupied only part of the year (Opn No. 82-235, supra; cf. Matter of Brown, 132 Misc 2d 811, 505 NYS2d 334). In this regard, although the properties in question are characterized as "camps", which may connote seasonal usage, this distinction is not determinative for purposes of the statute. Consequently, in the instant case, since the residences in question are occupied for a part of the year and are dependent upon the highway for access, the highway may not be designated as a seasonal limited use highway pursuant to section 205-a (see Opn No. 82-235, supra).2

As to the second question, we note that section 205-a relates only to the temporary discontinuance of snow and ice removal and maintenance of seasonal limited use highways and is silent with regard to capital improvements and upgrades of town highways. Therefore, the fact that a town highway fails to meet the qualifications for designation as a seasonal limited use highway, in and of itself, does not trigger any requirement under section 205-a that the town perform any upgrades or improvements on such a highway at the request of adjoining property owners (see Highway Law 140, 193, 284 and Town Law 200, concerning improvements to town highways generally; Faragiano v Town of Concord, 96 NY2d 776, 725 NYS2d 609, Kiernan v Thompson, 73 NY2d 840, 537 NYS2d 122, Lopes v Rostad, 45 NY2d 617, 412 NYS2d 127, Atkinson v County of Oneida, 77 AD2d 257, 432 NYS2d 970, and 1989 Opns St Comp No. 89-22, p 48, concerning the duty to construct and maintain highways in a "reasonably safe condition").3

Accordingly, where residences on a town highway are occupied for a part of the year and are dependent upon the highway for access, the highway may not be designated as a seasonal limited use highway pursuant to section 205-a. The fact that a town highway fails to meet the qualifications for designation as a seasonal limited use highway, in and of itself, does not trigger any requirement under section 205-a that the town perform any upgrades or improvements on such a highway at the request of adjoining property owners.

May 20, 2002

Edward P. Finnerty, Esq., Town Attorney
Town of North Elba

1. The statute refers to "town highways" generally and makes no distinction as to whether a highway is a dead end or a through highway, or whether a highway surface is paved or unpaved.

2. We have opined that the requirement that a highway be without occupied residences or commercial buildings dependent upon the highway for access is a continuing requirement (Opn No. 82-235, supra). Therefore, at the point when the requirement is no longer satisfied, the status of the highway as seasonal limited use terminates and the town may no longer discontinue removal of snow and ice and maintenance from December 1 through April 1 (id.; 1990 Opns St Comp No. 90-38, p 87).

3. Of course, it is possible improvements to the highway would be necessary to facilitate the appropriate level of snow and ice removal and maintenance of the highway for the period from December 1 until April 1.