Opinion 90-59

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.

CONSTITUTIONAL LAW -- Gifts and Loans (removal of snow and ice from private road)
STREETS AND HIGHWAYS -- Private Roads (removing of snow and ice from)

STATE CONSTITUTION, ARTICLE VIII, §1; HIGHWAY LAW, §140: A town may not regularly plow and sand a private road belonging to a disabled individual, except in an emergency situation.

You ask whether a town may regularly plow and sand a private road belonging to a disabled individual.

A town superintendent of highways has the general care and superintendence of the town highways and bridges and must keep them free from obstructions caused by snow (Highway Law, §140[1], [2]). For this purpose, towns are authorized to purchase equipment, snow plows and other devices (Highway Law, §142[1]).

This Office has previously stated that since town property is acquired only for proper town purposes, it may not be used for purely private purposes (1988 Opns St Comp No. 88-41, p 81; 1983 Opns St Comp, No. 83-103, p 127; 23 Opns St Comp, 1967, p 762; 16 Opns St Comp, 1960, p 56). Article 8, §1 of the State Constitution, which inter alia, prohibits a municipality from making gifts and loans of its property to or in aid of a private individual, generally prohibits the use of municipal property for the benefit of private parties unless it is primarily in furtherance of a proper municipal purpose and is undertaken pursuant to a statutory or contractual obligation of the municipality. It is well-established, however, that an incidental private benefit will not invalidate an action which has as its primary objective a proper public purpose (see, e.g., Murphy v Erie County, 28 NY2d 80, 320 NYS2d 29).

Based on these principles, this Office has stated that, generally, a town may not use town personnel and equipment to remove snow from private roads and driveways (e.g. 1981 Opns St Comp No. 81-325, p 353; 26 Opns St Comp, 1970, p. 273; 11 Opns St Comp, 1955, p 740). A town may, however, remove snow from private property in order to provide access to a town official's home which is also used as his or her official office (e.g. 1977 Opns St Comp No. 77-672, unreported). Similarly, we have stated that, in the event of an emergency, such as a serious illness or fire, it is within the scope of a town's police powers in the interest of public health, safety and welfare, to plow a private road or driveway if necessary to render private property immediately accessible (26 Opns St Comp, 1970, supra). In the latter two instances, the private benefit received by the property owner is only incidental to the primary public benefit.

Under the circumstances in the instant case, it appears that the plowing and sanding would not be performed to further primarily a town purpose such as to facilitate public access to a town office or as an exercise of town police powers in an emergency. Rather, it appears plowing and sanding this private road on a regular basis would be in anticipation of a possible emergency and, therefore, would provide primarily a private benefit to the individual. Accordingly, it is our opinion that the town may not plow and sand this private road on a regular basis.

November 13, 1990
Deborah Ferro DiMezza, Esq., Town Attorney
Town of Edinburg