Opinion 91-49

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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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 -- Discontinuance of (county conveyance to other than owners of abutting lands)
COUNTIES -- Powers and Duties (conveyance of abandoned county highway property)

COUNTY LAW, §215; HIGHWAY LAW, §§118-a, 131-b: A county may convey an abandoned county highway by private sale by the adoption of a resolution approved by a simple majority of the whole governing body at a duly convened meeting. In certain circumstances, a county may be permitted to convey title to abandoned county highway property only to owners of property abutting such highway.

You ask whether a county may convey an abandoned county highway, by private sale, to either the adjoining owner or another party and, if so, whether the sale may be approved by adoption of a resolution passed by a simple majority of the county legislative body. You have advised us that the county owns fee simple title to the road bed.

Highway Law, §131-b(1) provides that a county legislative body "may, when satisfied that it is for the interest of the county... discontinue a county highway therein...". We have interpreted similar authority in Village Law, §6-612 (and its predecessor statutes) to authorize a village board of trustees, upon discontinuing a village street owned by the village, to convey title to a grantee for fair and adequate consideration (1982 Opns St Comp No. 82-104, p 129; 1980 Opns St Comp No. 80-156, p 43; 24 Opns St Comp, 1968, p 678; 20 Opns St Comp, 1964, p 269). We believe that the conclusion expressed in those opinions would apply equally to a county's authority to dispose of a county highway which it has discontinued pursuant to Highway Law, §131-b.

With respect to the procedures for effectuating the conveyance, County Law, §215 contains general provisions governing the disposition of unneeded county real property. Subdivision 5 of section 215 provides for a two-thirds vote of the county legislative body to sell and convey unneeded real property. Subdivision 6 provides that unneeded county real property may be sold or leased only to the highest responsible bidder after public advertisement. Pursuant to County Law, §215(8), however, both the public sale and two-thirds vote requirements are inapplicable to conveyances of, inter alia, highway lands.

As a general rule, when a statute commits a decision to a governing body and is silent as to the method of its exercise, the governing body expresses its will by the adoption of a resolution passed by a simple majority vote of the whole governing body at a duly convened meeting (5 McQuillin, Municipal Corporations, §15.06 [3rd ed.]; Reese v Lombard, 47 AD2d 327, 366 NYS2d 493; County Law, §153[4]; 1990 Opns St Comp No. 90-5, p 12). Therefore, it is our opinion that the county may convey, at private sale, an unneeded highway owned by the county, abandoned pursuant to Highway Law, §131-b, by resolution passed by simple majority vote (cf., e.g., Hallenback v State, 59 Misc 2d 475, 299 NYS2d 329; Opn No. 82-104, supra, relative to abandonment of a road if the municipality does not have fee title; 20 Opns St Comp, 1964, p 269, relative to possible claims by abutting owners injured by a discontinuance of a public street).

Although the County Law generally permits a county to convey a discontinued highway property to any party, Highway Law, §118-a may require that the abandoned county road be conveyed to adjacent property owners in certain instances. Section 118-a provides that, upon the recommendation of the county superintendent of highways, the county legislative body is specifically authorized to abandon to abutting owners parts of a county road which are of no further use for highway purposes, providing the road after abandonment is not less than three rods in width, when:

(1) the county road has been widened, straightened, extended, drained, paved and/or otherwise improved; and

(2) in the process, the county has acquired from an adjacent owner certain lands necessary for said right-of-way by purchase, condemnation or as a gift; and

(3) where under such circumstances either the grantor of the new right-of-way owns the property on both sides thereof for the full length of the new taking or the written consent of any and all other owners within the area is given; and

(4) there are sections of the old road as it existed before the improvement which are of no further use for highway purposes to the county.

In those circumstances, the chairperson of the county legislative body may execute a quit-claim deed of the lands so abandoned, in the name of the county, and deliver the same to the abutting owner(s) "for such consideration and upon such terms and conditions" as the legislative body deems proper (see also Highway Law, §125, not applicable here, but which makes special provision for conveyance of interests in certain lands acquired for the purpose of obtaining materials for construction and maintenance of highways and in excess land acquired by purchase or condemnation as a right-of-way for county road).

Although section 118-a appears to permit rather than require conveyance of such lands to owners of abutting lands, we note that similar permissive language in section 125 has been construed as authorizing conveyance of title only to such abutting owners (see Griefer v Sullivan County, 246 AD 385, 286 NYS 791; Friedman v County Executive and Board of Supervisors of Nassua County, 58 AD2d 591, 395 NYS2d 494). There is no case law so construing Highway Law, §118-a (or companion section 212-a applicable to town highways). If the facts in your case fall within the conditions set forth in section 118-a, however, you should be aware that a court may construe the authority of section 118-a as limiting the county to conveying only to owners of lands abutting the abandoned county highway (see also 1977 Atty Gen [Inf Opns] 153).

November 13, 1991
Kenneth H. Holcombe, Esq., County Attorney
County of Clinton