Opinion 2001-13

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

FEES -- Imposition of (authority of a town to install a tollbooth and charge a fee to certain users of town highways)

LOCAL LAWS -- Pre-emption (fees for use of town highways)

MUNICIPAL CORPORATIONS -- Powers and Duties (authority to install a tollbooth and charge a fee to certain users of public highways)

STREETS AND HIGHWAYS -- Improvements (authority of a town to charge a fee to certain users of town highway to be used to replace highway) -- Use of (authority of a town to charge a fee to certain users of town highways)

TOWNS -- Powers and Duties (authority of a town to install a tollbooth and charge a fee to certain users of town highways)

VEHICLE AND TRAFFIC REGULATIONS -- Toll Collection Provisions (authority of town to install tollbooth and charge a fee to certain users of town highway)

TOWN LAW §130(7)(a); MUNICIPAL HOME RULE LAW §10; STATE CONSTITUTION, ARTICLE IX, §2; VEHICLE AND TRAFFIC LAW §§1600, 1604: Absent a State statute providing express authority, a town may not install a tollbooth and charge a fee to certain users of a town highway.

You asked whether a town has the authority to install a tollbooth on a town highway that leads to a recreation area, and to charge a fee for the use of such road. You indicate that each year approximately 75,000-80,000 vehicles travel this road to reach the recreation area, and that the money collected from tolls would be used to replace this road. You also indicate that certain persons would be exempt from the charge, including residents whose properties abut the road and persons making deliveries to certain commercial establishments.

In general, public highways and roads are subject exclusively to regulation and control by the State, except to the extent that the State Legislature delegates power over them to political subdivisions (see, e.g., People v Grant, 306 NY 258, 260). Further, when there is a general delegation of power to political subdivisions allowing them to regulate the highways within their boundaries, the Legislature retains ultimate control, including the power to restrict localities and ensure uniform highway regulation throughout the State (see, e.g., People v Speakerkits, 832 NY2d 814, 611 NYS2d 488; New York State Pub. Empls. Fedn. v City of Albany, 72 NY2d 96, 531 NYS2d 770).

Relevant to this inquiry, there are several provisions that generally authorize towns to regulate their highways. Town Law §130(7)(a) authorizes towns to enact ordinances, rules and regulations, not inconsistent with law, for the purpose of, among other things, regulating the use of streets and highways by motor vehicles and, in certain instances, authorizes towns to include within such ordinances provision for the collection of a reasonable uniform fee. In addition, towns are authorized to adopt local laws, not inconsistent with any general law or the Constitution, relating to their property, affairs and government, and relating to certain enumerated subjects, including the management and use of its highways, roads, streets, avenues and property, and the fixing, levy, collection and administration of local government rentals, charges, rates or fees, "except to the extent that the legislature shall restrict the adoption of such a local law" (Municipal Home Rule Law §10[l][i],[ii][a][6],[9-a]; NY Const, article IX, §2). A town's home rule power is also limited by the doctrine of pre-emption. When the State Legislature has clearly envinced 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 (see, e.g., Incorporated Village of Nyack v Daytop Village Inc., 78 NY2d 500, 577 NYS2d 215).

Sections 1600 and 1604 of the Vehicle and Traffic Law contain restrictions on the authority of municipalities in connection with regulation of public highways that are pertinent here. Section 1600 contains language generally prohibiting the adoption of local laws, orders, rules and regulations superseding provisions of the Vehicle and Traffic Law, as follows:

The provisions of this chapter shall be applicable and uniform throughout the state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any local law, order, rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein.

Further, section 1604 specifically relates to the imposition of fees by municipalities for use of public highways and provides as follows:

Except as otherwise provided in this chapter, local authorities shall have no power to pass, enforce or maintain an ordinance, rule or regulation requiring from any owner of a motor vehicle or motorcycle, or from any operator or chauffeur to whom this chapter is applicable, any tax, fee, license or permit for the use of the public highways…1

The Court of Appeals has noted in general that sections 1600 and 1604 "prohibit localities from excluding persons from the free use of the highways except to the extent such limitations are expressly authorized by statute." (Pub. Empls. Fedn, supra, 72 NY2d at 101, 531 NYS2d at 772; see also, e.g., Speakerkits, supra; Board of Education of the Farmingdale UFSD v Gulotta, 157 AD2d 642, 549 NYS2d 740). Moreover, in People v County of Westchester, 282 NY 224, the Court of Appeals specifically reviewed a county local law that imposed a toll on a public highway. In striking down the local law, the Court cited the predecessor statute to section 1604 and noted that "[t]he clear purpose of the statute was to prevent local tolls for the use by automobiles" of public highways, in the absence of an "express grant" of authority from the State Legislature (People v County of Westchester, supra, 282 NY at 231; cf. Bogart v County of Westchester, 185 Misc 561, 57 NYS2d 506 affd 270 AD2d 274, 59 NYS2d 77, involving a State statute authorizing a county to impose tolls upon certain public highways; Vehicle and Traffic Law §1630[4]; compare 1982 Opns St Comp No. 82-237, p 298).

We find no State statute providing the requisite express authority in this instance. Accordingly, it is our opinion that the town may not install a tollbooth and charge a fee to certain users of a town highway.2

December 26, 2001

Shirley W. Seney, Supervisor
Town of North Elba

1 This statute provides certain exceptions to this prohibition, none of which are applicable to the case presented. Also, note that a town is a "local authority" for purposes of sections 1600 and 1604 (Vehicle and Traffic Law §122) and a town highway is a "public highway" for purposes of section 1604 (Vehicle and Traffic Law §134).

2 In our view, a local law that would impose a toll for the purpose of raising revenues to finance town highway improvements would be prohibited for a further reason. In Albany Area Builders Association v Town of Guilderland, 74 NY2d 372, 547 NYS2d 627, the Court of Appeals noted that, by several provisions in the Town Law (article 8) and the Highway Law (e.g., sections 284-285-a), "the State Legislature has enacted a comprehensive and detailed regulatory scheme in the field of highway funding, preempting local legislation on that subject." Therefore, we believe that a local law that would impose a toll or fee on certain motor vehicles that use a town highway in order to raise revenue to improve such highway also would be pre-empted by this statutory scheme.