Informal Opinion No. ( 1986 )

Charles P. Caputo, Esq. County Attorney, Fulton

You have asked whether a county has authority to assume responsibility for village streets that are part of the county road system.

Your letter states that County Road #155 was made part of the Fulton County road system in 1959. The road has a length of 2.32 miles, 1.01 miles of which is located in the Village of Broadalbin. Additionally, County Road #117 has a length of 1.01 miles, .68 miles of which is in the Village of Broadalbin. Your question is whether the county has authority to assume responsibility for those portions of the county roads located within the village; particularly you have asked whether the county has authority to remove snow from these streets. We believe the county has such authority.

Section 102 of the Highway Law charges the county superintendent of highways with the duty to construct, improve, repair and maintain all county roads within the county (Highway Law, § 102[2]). A county road fund, consisting of State and county monies, is created by section 114 of the Highway Law, which requires that monies "shall be expended for construction, reconstruction and maintenance of a county road system" (id., § 114[1]). Section 114 authorizes the county to expend funds on the maintenance of the county road system, along with any other highways that the county is required or authorized to maintain "whether or not such highways are a part of the county road system" (id., § 114[2]). Sections 114 and 115 of the Highway Law also describe the procedure by which a highway is made part of the county road system. Finally, the county board of supervisors has the power to appropriate these funds for the removal of snow from the county roads, and also to designate the county roads from which the snow is to be removed (id., § 135).

Given this general background, we turn now to the question of whether the county may maintain county roads which are located within a village. Highway Law, § 131 unequivocally states:

"Notwithstanding any other provisions of law, the county road system provided for in this article may include highways within an incorporated village . . . " (id., § 131).

The term "highways", as used here in its general meaning, includes streets within a village which may have an urban character (Brace v NewYork Central Railroad Company, 27 N.Y. 269, 271 [1863]; 26 N Y Jur,Highways, Streets and Bridges, § 6, pp 175-176; see Matter ofWoolsey, 95 N.Y. 135, 139-140 [1884]; Village Law, § 6-600). The fact that a portion of a county road may lie within an incorporated village, therefore, has no bearing on whether it must be maintained by the county superintendent of highways. The determinative factor is whether the highway is part of the county road system, or whether the county is otherwise obligated or authorized to maintain it.

You have also inquired as to the method by which a county may remove roads from the county road system. Section 115-b of the Highway Law gives the county board of supervisors the power to remove, by resolution, a road or part of a road from the county road system. Such removal is to be done upon the recommendation of the county superintendent of highways, and with the written approval of either the municipality that will assume responsibility for the road, or the State commissioner of transportation (Highway Law, § 115-b).

We conclude that a county has authority to maintain those portions of county roads which lie within an incorporated village within the county.