Can a New York town set the speed limit on a state highway that runs through it when the road was built by New York City under the Water Supply Laws?

Plain-English summary

The Town of Olive in Ulster County asked the Attorney General whether the Town could set the speed limit on the portion of Route 28A that crosses through it. Route 28A runs along the southern edge of the Ashokan Reservoir, the centerpiece of New York City's upstate water supply. It was not built as a normal state or town road. New York City built it under a chain of special statutes that began in 1905, when the Legislature authorized the City to use eminent domain outside its borders to build reservoirs and required the City to construct and forever maintain any highways made necessary by that work.

The Town pointed to Vehicle and Traffic Law § 1622, which lets a town board ask the State Department of Transportation to set higher or lower speed limits than the statutory default "with respect to town highways in such town or towns outside of cities or villages." The question was whether Route 28A counted as a "town highway" for purposes of that statute.

The AG concluded that it did not. Section 1622's authority extends to town highways, and Route 28A had never become one. Under Highway Law § 3(5), a highway becomes a town highway because it was laid out, built, or maintained by the town. Under Highway Law § 189, a highway can also become a town highway by use, but only if it has been maintained by town authorities. Neither path applied to Route 28A. The City built it under the Water Supply Laws and the City was statutorily required to keep maintaining it. The Legislature itself referred to Route 28A as "the city of New York road on the south side of the Ashokan reservoir" when it described state highways in Highway Law § 341(53)(1).

The AG also pointed to contemporaneous evidence from the late 1950s and early 1960s. When towns surrounding the reservoirs lobbied for legislation requiring the City to plow and sand these roads in winter, supervisors, town attorneys, and assemblymen from the watershed communities all wrote that the highways were City highways, not town, county, or state roads. The AG treated that historical record as confirmation of the statutory reading.

Finally, the opinion noted that ruling out town authority did not leave the road unregulated. The 1914 amendments to the Water Supply Laws, now codified at section 24-356(b) of the New York City Administrative Code, gave the City the power to regulate the use of these highways. So the speed limit on Route 28A was not in a regulatory void; it just was not the Town's to set.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Which roads does the NYC water-supply statute even cover?
The 1905 Act and its 1928 amendment cover highways and bridges that became necessary because the City built reservoirs outside the City to supply water. Route 28A around the Ashokan Reservoir is the example in this opinion. Other roads built to replace highways flooded by the reservoir system would generally have the same status.

Could the Town just adopt a local law setting the speed limit?
The opinion did not analyze that route, but it would face two problems. First, Vehicle and Traffic Law preempts much of the field of local traffic regulation. Second, if a highway is a City facility, a town local law purporting to set its speed limit is not regulating the town's own road.

Could DOT itself set a speed limit?
The opinion focused on whether the Town could initiate a § 1622 request. It did not foreclose other state-level mechanisms, and it pointed to the City's own regulatory authority under the Water Supply Laws as the existing channel for speed regulation on these highways.

Why does this matter for the towns surrounding NYC reservoirs?
For decades, watershed communities have had to negotiate with the City about plowing, signage, weight limits, and other practical use of these substituted highways. The 2006 opinion confirmed the legal background to those negotiations: the roads are City property, built and run under City-specific statutes, and the towns' usual highway-management tools do not apply.

Did the AG say anything about whether this allocation makes good policy?
No. The opinion stuck to the statutory question. Whether towns should have a say in setting speed limits on highways that go through them is a legislative question.

Background and statutory framework

The opinion traces a 100-year-old statutory scheme. In 1905 the Legislature gave New York City the power of eminent domain outside its borders to build a water-supply system. The same Act required the City to build and "forever maintain" any highways and bridges made necessary by reservoir construction. A 1928 amendment clarified that the maintenance duty extended to all such highways and bridges. The provision was codified in the New York City Administrative Code in 1937 and recodified in 1985; it now sits at §§ 1-111 and 24-356(a).

A 1914 amendment, now § 24-356(b), gave the City regulatory authority over the use of these highways. That is the provision the AG pointed to when it said its conclusion did not leave Route 28A unregulated.

The other half of the analysis comes from the Highway Law and the Vehicle and Traffic Law. Highway Law § 3(5) defines a town highway by reference to who laid out, built, or maintained it. Section 189 lets a highway become a town highway by use, but only when town authorities have maintained it. Vehicle and Traffic Law § 1622 lets the State DOT, "upon the request of . . . the town board," set speed limits on "town highways" outside cities or villages.

The opinion brings these strands together: because the City, not the Town, built and maintained Route 28A under special legislation, the road is not a town highway under Highway Law § 3(5) or § 189. Section 1622 therefore does not let the Town initiate a speed-limit change.

Citations

• L. 1905, Ch. 724 (original Water Supply Laws); L. 1928, Ch. 525 (clarifying amendment); L. 1937, Ch. 929 (codification in NYC Administrative Code); L. 1985, Ch. 907 (recodification); L. 1914, Ch. 478 (regulatory authority over substituted highways).
• New York City Administrative Code §§ 1-111, 24-356, 24-356(b).
• Highway Law § 3(5) (definition of town highway), § 189 (town highway by use), § 341(53)(1) (state highway designations referencing "the city of New York road on the south side of the Ashokan reservoir").
• Vehicle and Traffic Law § 1622 (DOT speed-limit authority on town highways at request of town board).
• Matter of Hillelson v. Grover, 105 A.D.2d 484 (3d Dep't 1984) (highway must be maintained by town authorities to become a town highway by use).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2006-8_pw.pdf

Original opinion text

L. 1905, Ch. 724; L. 1937, Ch. 929; L. 1985, Ch. 907; L. 1914, Ch. 478; New York City Administrative Code §§ 1-111, 24-356; Highway Law §§ 3(5), 189, 341(53)(1); Vehicle and Traffic Law § 1622

The town is not authorized to regulate speed on the portion of a highway built pursuant to special legislation that goes through the town.

September 15, 2006

Peter Case Graham
Town Attorney
Town of Olive
479 Washington Avenue
Kingston, New York 12401

Informal Opinion No. 2006-8

Dear Mr. Graham:

You have requested an opinion regarding whether the Town is authorized to set the speed limit on the portion of Route 28A that runs through the Town. We understand that Route 28A runs along the southern edge of the Ashokan Reservoir and was built pursuant to the special legislation described below ("the Water Supply Laws"). As explained below, we are of the opinion that the authority to regulate speed on the portion of Route 28A that runs through the Town does not reside with the Town.

Statutory Background

In 1905, the Legislature granted to New York City the power to exercise eminent domain in areas outside the City to establish a water supply for the City. Act of June 3, 1905, ch. 724, 1905 N.Y. Laws 2027. Concomitant with this power, the City was given the responsibility of building and maintaining highways made necessary by the construction of reservoirs built pursuant to this statutory authority. Id. § 35 ("The city of New York is hereby required to build and construct such highways and bridges as may be made necessary by the construction of any reservoir under this act, and to repair and forever maintain such additional highway [sic] bridges . . . .").

In 1928, the act was amended to clarify that the City's maintenance responsibility extended to "highways and bridges" made necessary by the construction of any reservoir authorized by the act. Act of Mar. 23, 1928, ch. 525, § 5, 1928 N.Y. Laws 1144, 1148 (emphasis added).

This provision of the Water Supply Laws was subsequently codified by the Legislature in the New York City Administrative Code. Act of Dec. 30, 1937, ch. 929, 1937 N.Y. Laws (Extraord. Sess.) 1, 1523. The Legislature also reserved to itself "[a]ll rights and powers to amend, modify, extend or supersede any provision or provisions of title K of chapter forty-one ['Water Supply'] . . . and any other provision or provisions of this code relating to any lands now or hereafter acquired outside the corporate limits of the city for water supply purposes, including highways, bridges and sewers." Id. at 1533. Recodified by the Legislature since then, see Act of Aug. 2, 1985, ch. 907, 1985 N.Y. Laws 3737, 3738, 5214, these provisions are now located at sections 1-111 and 24-356(a) of the New York City Administrative Code.

Analysis

You have suggested that the Town may be authorized to initiate speed limit changes on the portion of Route 28A that runs through the Town pursuant to Vehicle and Traffic Law § 1622. Section 1622 provides that

[t]he [State D]epartment of [T]ransportation upon the request of . . . the town board of the town or towns affected with respect to . . . town highways in such town or towns outside of cities or villages, may by order, rule or regulation:

1. Establish maximum speed limits at which vehicles may proceed on or along such highways higher or lower than the fifty-five miles per hour statutory maximum speed limit.

We believe that section 1622 does not provide the necessary authority for the Town to initiate speed limit changes because by its plain language it applies to town highways, and, as explained below, we believe Route 28A is more properly viewed as a City highway than a town highway.

Pursuant to the Water Supply Laws, the City has been charged with building and maintaining Route 28A. Had the highway been built and maintained by the Town, it would be classified under state law as a town highway. See Highway Law § 3(5); cf. Highway Law § 189 (town highway established by use); Matter of Hillelson v. Grover, 105 A.D.2d 484, 485 (3d Dep't 1984) (highway must be maintained by town authorities to become town highway by use). Moreover, the Legislature considers Route 28A a City, rather than a town, highway. In designating state highways, the Legislature has used as a reference point a "city of New York road on the south side of the Ashokan reservoir," Highway Law § 341(53)(1), referring to Route 28A.

Our conclusion that Route 28A, as a highway built pursuant to the Water Supply Laws, is a City, rather than a town, highway accords with the position taken in the past by officials associated with the communities surrounding reservoirs built pursuant to the Water Supply Laws. In supporting legislation requiring the City to remove snow from and to sand highways built pursuant to the Water Supply Laws, these officials took the position that the highways are City highways. See, e.g., Letter from Gleason B. Speenburgh, attorney for the town of Middletown, to Robert MacCrate, Counsel to the Governor (March 29, 1960), reprinted in Bill Jacket for ch. 944 (1960), at 4 ("After study of the pertinent [s]tatutes I am of the opinion that such substituted highway is not a Town Highway."); Letter from Wallace M. Wynkoop, Supervisor for the town of Colchester, id. at 7 ("this road and those connecting in adjacent townships . . . are not a part of the State, County, or Town Highway Systems"); Letter from Edwyn E. Mason, Assemblyman for Delaware Co., to Robert MacCrate, Counsel to the Governor (March 30, 1960), id. at 19 ("Now these substitute highways are actually New York City highways. They do not belong to the town, county or state."); Memorandum from Kenneth L. Wilson, Assemblyman, Ulster Co. (April 25, 1960), reprinted in id. at 22 ("For the protection of the public, adequate provision should be made in the law for the [C]ity to maintain [its] own roads.").

The Water Supply Laws provide for the regulation of the use of highways built pursuant to those laws. See Act of Apr. 20, 1914, ch. 478, § 1, 1914 N.Y. Laws 1966, 1967, codified as amended at 24 N.Y.C. Admin. Code § 24-356(b). Therefore, our conclusion that the Town is not authorized to initiate changes to the speed limit on the portion of Route 28A that traverses the Town does not result in a regulatory void.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions