Law Dept Memorandum 4-12-13 (2)

7/28/2019 Law Dept Memorandum 4-12-13 (2)

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ANDREW W. NEGRO SANDRA M. FUSCOSenior Deputy County Attorne)L. SPADACCINI

For Risk and ComplianceDANIELLE M. HARRISDeputy County Attorney

ROBERT A. NOAHJONATHAN ENGEL

Deputy County AttorneyCounty Attorney

DEPARTMENT OF LAWREVISED MEMORANDUM: -,_,c::rC J - - < ~ - ,;r-: lr: J_--::) : - : ~ . , . - : - . :TO: Sam Oliverio, Jr./LegislatorDonald B. Smith/Sheriff '""'7-11"''N .. ,, . - = . . : ~ , - -Fred Pena/Commissioner ofHighways and FacilitiesFROM: Jonathan T. EngelDATE: April 12, 2013RE: Highway Commissioner's ability to regulate traffic on county highways.

This office has been requested to provide an opinion as to whether Putnam County hasthe ability to regulate road traffic on county roads through the imposition ofweight limits.

First, the federal commerce clause vests Congress with the power "to regulate Commercewith foreign Nations, and among the several States, and with the Indian Tribes." U.S.C.A.Const. Art. I 8, cl. 3. The commerce clause has long been seen as a limitation on stateregulatory powers, as well as an affirmative grant of congressional authority. Fulton Corp. v.Faulkner, 116 S.Ct. 848,516 U.S. 325 (1996). The purpose ofthe commerce clause was notmerely to empower Congress with the negative authority to legislate against state regulations ofcommerce deemed inimical to the national interest, but the power granted is a positive power andincludes the power to legislate concerning transactions which, reaching across state boundaries,affect the people ofmore states than one, and to govern affairs which the individual states withtheir limited territorial jurisdictions are not fully capable of governing. U.S. v. South-EasternUnderwriters Ass'n, 64 S.Ct. 1162, 322 U.S. 533 (1944).

The commerce clause gives Congress power to regulate three types of activity, in thisregard: (1) the use of channels of interstate commerce; (2) the instrumentalities of interstatecommerce, or persons or things in interstate commerce, even though the threat may come onlyfrom intrastate activities; and (3) those activities having a substantial relation to interstatecommerce, i.e., those activities that substantially affect interstate commerce. U.S. v. Tykarsky,C.A.3 (Pa.) 2006, 446 F.3d 458, appeal after new sentencing hearing 295 Fed.Appx. 498, 2008

48 GLENEIDA AVENUE, CARMEL, NEW YORK 10512Tel. (845) 808-1150 I Fax (845) 808-1903**This office will not accept service viafacsimi le

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Page -2-April 12, 2013Re: Highway Commissioner's ability to regulate traffic on county highways.'WL 4492626, certiorari denied 129 S.Ct. 1929. See, e.g., Pierce County, Wash. v. Guillen, 123S.Ct. 720, 537 U.S. 129 (2003). "Channels of interstate commerce" are interstate transportationroutes through which persons and goods move, including highways, railroads, navigable waters,and airspace. Vanguard Car Rental USA, Inc. v. Drouin, S.D.Fla.2007, 521 F.Supp.2d 1343,vacated and remanded 2009 WL 995141. "Instrumentalities of interstate commerce" are thepeople and things themselves moving in commerce, including automobiles, airplanes, boats,pagers, telephones, mobile phones, and shipments of goods. U.S. v. Ballinger, C.A.1I (Ga.)2005,395 FJd 1218, certiorari denied 126 S.Ct. 368,546 U.S. 829.

While the Supreme Court has been most reluctant to invalidate state regulations thattouch upon safety, especially highway safety, constitutionality of such regulations neverthelessdepends upon sensitive consideration of weight and nature of state regulatory concern in light ofextent of burden imposed on course of interstate commerce. (Per Justice Powell, with threeJustices concurring and two Justices concurring in the result.) Kassel v. ConsolidatedFreightways Corp. ofDelaware, 101 S.Ct. 1309,450 U.S. 662 (1981).For instance, a city ordinance limiting the weight of trucks to below the limit set forth infederal statute did not impose unreasonable burden on interstate commerce in violation of thecommerce clause. Ruiz v. Commissioner ofDept. ofTransp. ofCity ofNew York, S.D.N. Y.1988,679 F.Supp. 341, re-argument denied 687 F.Supp. 888, affirmed 858 F.2d 898. See LattavoBros., Inc. v. Hudock, M.D.Pa.1953, 119 F.Supp. 587, affirmed74 S.Ct. 478,347 U.S. 910 (Astate, in exercise of its police power and in absence ofCongressional action, may imposereasonable restrictions upon weight and size ofvehicles traveling over its highways, equallyapplicable to intrastate and interstate commerce, without running afoul of this clause or dueprocess clauses of the 14th Amendment); in evaluating a Commerce Clause challenge to a localsafety regulation that does not discriminate between local and out-of-state interests, the federalcourts are to apply a balancing test, weighing the local safety interest served against the degree

of interference with interstate commerce. Nat'! Tank Truck Carriers, Inc. v. City ofNew York,677 F.2d 270,273 (2d Cir.1982) (citing Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct.844, 847 (1970)).Where the statute regulates even-handedly to effectuate a legitimate local publicinterest, and its effects on interstate commerce are only incidental, it will beupheld unless the burden imposed on such commerce is clearly excessive inrelation to the putative local benefits.

!d. (emphasis added). In no field is the deference to local regulation greater than in the area ofhighway safety, and highway safety regulations enjoy a strong presumption of validity. !d.(citing Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 443, 444 & n. 18, 98 S.Ct. 787, 795,795 & n. 18 (1978)). See also, e.g., Kassel v. Canso/. Freightways Corp., 450 U.S. 662,670, 101S.Ct. 1309, 1316 (1981).In Ruiz v. Commissioner ofDept. ofTransp. ofCity ofNew York, 679 F.Supp. 341(S.D.N. Y.1988), Plaintiffs failed to meet their burden of showing that the New York Cityordinance at issue imposed an unreasonable burden on interstate commerce. The Court reasoned


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W. NEGRO

L. SPADACCINIRisk and Compliance

A. NOAH ey

Page -3-Aprill2, 2013

JENNIFER S. BUMGARNERCounty Attorney

DEPARTMENT OF LAWRe: Highway Commissioner's ability to regulate traffic on county highways.as follows:

SANDRA M. FUSCOSenior Deputy County AttorneyDANIELLE M. HARRISDeputy County Attorney

JONATHAN ENGELDeputy County Attorney

The hazards caused by overweight trucks are well known, not only because of thegreater damage they cause when involved in accidents and the greater likelihoodof an accident when a truck is overloaded, but also because of the added wearheavy trucks cause to highways on which they travel. Plaintiffs do not challengethe 73,280 pound weight limitation on City streets, and former section 211 (1 0), asenforced, was entirely consistent with the uniform 80,000 limit that Congressintended to impose on the federal highway system. Any burden that formersection 211 (1 0) placed on interstate commerce was not clearly excessive inrelation to its local benefits. Accordingly, plaintiffs' Commerce Clause argumentmust fail.

Ruiz v. Commissioner ofDept. ofTransp. ofCity ofNew York, 679 F.Supp. 341 (S.D.N.Y.1988).A potential conflict could exist between local and federal law, however, for preemptionpurposes, if it is physically impossible to comply with federal and state law, or if state law standsas an obstacle to accomplishment and execution ofthe full purposes and objectives of Congress.Ruiz v. Commissioner ofDept. ofTransp. ofCity ofNew York, 679 F.Supp. 341 (S.D.N.Y.l988).Here, a preemption issue does not exist as Congress has permitted the states to regulate highwaysafety pursuant to their police power, as long as the regulation does not substantially burden

interstate commerce.The New York Constitution grants local governments the power to adopt local lawsrelating to "the acquisition, care, management and use of its highways, roads, streets, avenuesand property," to the extent not restricted by the state Legislature, and provided that such lawsare not inconsistent with the provisions of the Constitution or any general law. N.Y. Const. Art.9, 2(c)(ii)(6). See also Municipal Home Rule Law 10(1)(ii)(a)(6); 2004 N.Y. Op. Atty. Gen.

No. I 0 (2004). As part of their home rule powers, municipalities are also authorized to providefor the punishment of violations of their local laws by civil penalty, fine, forfeiture orimprisonment, or by a combination of these punishments. See Municipal Home Rule 10(4 )(b);

48 GLENEIDA AVENUE, CARMEL, NEW YORK 10512Tel. (845) 808-1150 I Fax (845) 808-1903**This office will not accept service via facsimile


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- -Aprill2,2013Re: Highway Commissioner's ability to regulate traffic on county highways.Op. Atty. Gen. (Inf.) 88-22.

The regulation and control of public highways is a matter of state concern exclusivelywithin the power of the State, except to the extent that the Legislature has delegated such powerto political subdivisions and municipal corporations. See People v. Grant, 306 N.Y. 258, 260(1954). The provisions of the Vehicle and Traffic Law (hereinafter "VTL") are deemed"applicable and uniform throughout this state and in all political subdivisions and municipalitiestherein." VTL 1600. Local governments may not "enact or enforce any local law, ordinance,order, rule or regulation in conflict with the provisions of' the VTL unless "expresslyauthorized" to do so by statute. Id, see also, VTL 1604 ("[e]xcept as otherwise provided in thischapter, local authorities shall have no power to pass, enforce or maintain any ordinance, rule orregulation .. . excluding any such owner [of a motor vehicle] .. . from the free use of such publichighways.. .or in any other way restricting motor vehicles or motorcycles or their speed upon oruse of the public highways").

The VTL restricts the weight and dimensions ofmotor vehicles on all public highways inthe State1 VTL 385 contains a broad and detailed regulatory scheme, establishing specificmaximum limits on vehicle width, height, length and weight, providing fo r certain exceptionsfrom the restrictions. See 2004 N.Y. Op. Atty. Gen. No. 10 (2004).As stated above, VTL 1600 provides that local government may not "enact or enforceany local law, ordinance, order, rule or regulation in conflict with the provisions of' the VTLunless "expressly authorized" to do so. VTL 1650 enumerates specific areas in which the Statehas delegated to the county superintendent of highways with respect to county roads. Inparticular, section 1650 authorizes the county superintendent ofhighways, by order, rule orregulation to "[e ]xclude trucks, commercial vehicles, tractors, tractor-trailer combinations, ortractor-trailer-semitrailer combinations in excess of any designated weight, designated length,designated height, or eight feet in width, from county highways, except for qualifying or accesshighways or set limits on hours of operation of such vehicles." VTL 1650(a)(4-a). VTL1650(a)(4-a) further provides that '[s]uch exclusion shall not be construed to prevent the

delivery or pickup ofmerchandise or other property along the highways from which suchvehicles or combinations are otherwise excluded." See Troy Sand & Gravel Co. Inc. v.Rensselaer County, 235 A.D. 2d 813 (3rd Dept. 1997) (VTL 1650(a)(4-a) vests a countysuperintendent ofhighways with the authority to, inter alia, impose weight limit restrictionsupon county roads, the statute requires that such action be accomplished by "order, rule orregulation."). This delegation to permit exclusion of heavy trucks from county highways doesnot reference state-wide limitations on truck weight and dimensions specified in 385, orspecifically permit counties to enact local laws inconsistent with the state standards. Cf VTL1630(1), 1642(a)(authorizing certain state and local public authorities and cities having apopulation in excess of one million to enact laws that supersede provisions of the VTL withrespect to certain enumerated subjects, including weights and dimensions of vehicles).Accordingly, VTL 1650(a)(4-a) must be read in relation to and consistent with the provisions of

of federal law also govern the maximum weight and dimensions of vehicles on interstate highways. See 23 U S.C. I:of the VTL contains a provision intended to ensure that state and local restrictions are neither in violation of norSee VTL 385(20).


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ANDREW W. NEGROFirst Deputy County AttorneyADRIENNE L. SPADACCINIenior Deputy County Attorney

For Risk and ComplianceROBERT A. NOAH

Page -5-April 12, 2013


DEPARTMENT OF LAW

Re: Highway Commissioner's ability to regulate traffic on county highways.VTL 385.

SANDRA M. FUSCOSenior Deputy County AttorneDANIELLE M. HARRISDeputy County AttorneyJONATHAN ENGEL

Deputy County Attorney

As noted, the provisions of the VTL are intended to be uniform and applicablethroughout the State, and local governments are specifically prohibited from enacting provisionsthat duplicate any provision of the VTL. VTL 1600. This rule effectuates the Legislature'sintent to prevent "the existence of two sets of enactments, under either of which there could be aprosecution for violation of the provisions thereof." People v. President & Trustees ofVillage o fOssining, 238 A.D. 684 (1st Dept. 1933)(construing predecessor to VTL 1600), ajf'd, 264 N.Y.574 (1934). To avoid duplication and conflict with VTL 385, the delegation to exclude heavytrucks in 1650(a)(4-a) is most reasonably interpreted as delegating authority to exclude trucksthat weigh less than the maximum weight permitted under 385, rather than as delegatingauthority to regulate and punish conduct that otherwise violates the maximum weight limitsalready established by 385. See 2004 N.Y. Op. Atty. Gen No. 10 (2004).

Further, in light of the Legislature's clear intent to preempt inconsistent local laws andprohibit duplication of state VTL provisions, see VTL 300 and 1600, as well as thecomprehensive nature of the regulatory scheme set forth in VTL 385, it is apparent that theLegislature intended to deny local municipalities authority to establish penalties for conduct as towhich VTL 385 already prescribes fines. 2004 N.Y. Op. Atty. Gen No. 10 (2004). Thus,where a local enactment prohibits conduct that is also prohibited by a provision of the VTL,conduct that violates the local law alone may be prosecuted as a local law violation and subjectto the penalties imposed by the local provision. See People v. Hunter, 190 N.Y. 315, 320-21(1907)(where violator was driving in excess of both lower NYC speed limit and higher statelimit, violation was one of state law subject to the higher state law penalties); see also People v.President & Trustees of Village ofOssining, 238 A.D. at 688 (intent of state-wide uniformity asset forth in predecessor VTL 1600 and 1604 was to "prevent two sets of enactments, undereither ofwhich there could be a prosecution for a violation ofthe provision thereof '). AttorneyGeneral Opinions have reached this same conclusion. See 2004 N.Y. Op. Atty. Gen No. 10(2004); 1951 Op. Atty. Gen. (Inf.) ("Where ever the facts disclose a violation of a specificsection of the State statute, any prosecution thereunder should be based solely upon a violation ofsuch law. While a local ordinance might well supplement a State statute, it could hardly be

48 GLENEIDA A VENUE, CARMEL, NEW YORK 10512Tel. (845) 808-1150 I Fax (845) 808-1903**This office will not accept service via facsimile


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.April 12, 2013Re: Highway Commissioner's ability to regulate traffic on county highways.presumed that a local parking ordinance was intended to be a substitute for such generallyapplicable rule of law."); 1930 Op. Atty. Gen. 327 (in absence of state speed limit, speedingconvictions were properly considered local law violations for purposes of distribution of fines,while convictions for driving in reckless manner should be considered state law violationsregardless of driver's speed).

Thus, conduct that violates VTL 385's maximum weight limits for vehicles on anypublic highway would need to be prosecuted under that section, subject to the schedule of finesprescribed therein, even ifthe same conduct would also violate a local municipality's localenactment excluding overweight trucks from specified local highways. See 2004 N.Y. Op. Atty.Gen No. 10 (2004). However, conduct violating only the lower weight limits established by thelocal enactment, and thus not implicating the provisions ofVTL 385, could be prosecuted underthe local enactment and would be subject to the penalties prescribed therein 2 See 2004 N.Y. Op.Atty. Gen No. 10 (2004).The Commissioner, pursuant to the Charter of Putnam County, shall:

(a) Have all the powers and duties of a County Engineer and County Superintendentof Highways pursuant to the Highway Law, Town Law or other applicable laws;

(b) Have charge and supervision of the design, construction, improvement,maintenance, repair, cleaning and lighting of all highways, roads, streets, bridgesand grade separation structures under jurisdiction of the County. Put. Cty.Charter 9 .02(a)-(b).Here, the Commissioner has the ability to regulate traffic on county highways for thepurposes of highway safety. In fact, highway safety regulations enjoy a great deal of deference,and also enjoy a strong presumption of validity. See, e.g., Raymond Motor Transp., Inc. v. Rice,434 U.S. 429, 443, 444 & n. 18, 98 S.Ct. 787, 795, 795 & n. 18 (1978)); Kassel v. Consol.Freightways Corp., 450 U.S. 662, 670, 101 S.Ct. 1309, 1316 (1981); Ruiz v. Commissioner of

Dept. ofTransp. ofCity ofNew York, 679 F.Supp. 341 (S.D.N.Y.l988). First, the proposed localhighway safety regulation would have to regulate even-handedly; meaning that the regulationcould not discriminate between local and out-of-state interests. Nat'! Tank Truck Carriers, Inc.v. City ofNew York, 677 F.2d 270,273 (2d Cir.1982) (citing Pike v. Bruce Church, Inc., 397U.S. 137, 142,90 S.Ct. 844,847 (1970)); Ruiz v. Commissioner ofDept. ofTransp. ofCity o fNew York, 679 F.Supp. 341 (S.D.N.Y.1988). Second, any proposed highway safety regulationwould have to pass a balancing test, which would require weighing the local safety interestserved against the degree of interference with interstate commerce. See Nat'! Tank TruckCarriers, Inc. v. City ofNew York, 677 F.2d 270, 273 (2d Cir.1982) (citing Pike v. Bruce Church,Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847 (1970)).

If the Commissioner, in the instant matter, were to propose a safety regulation pertainingto a big/heavy truck's weight, it would have to comply with the above legal requirements in

of local traffic regulations (defined as traffic infractions) must also be consistent with thein VTL 1800, must bear a reasonable relationship to the severity of the offense and not be abhorrent to a sensesee Op. Atty. Gen. (In f.) No. 88-30.


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ANDREW W. NEGRODeputy County AttorneyL. SPADACCINI

For Risk and ComplianceROBERT A. NOAHDeputy County Attorney

Page -7-April12, 2013


DEPARTMENT OF LAW

Re: Highway Commissioner's ability to regulate traffic on county highways.

SANDRA M. FUSCOSenior Deputy County AttorneyDANIELLE M. HARRISDeputy County Attorney

JONATHAN ENGELDeputy County Attorney

order not to violate the commerce clause, to wit: the proposed safety regulation would have toregulate even-handedly (it cannot discriminate between local and out-of-state interests), theproposed regulation would have to regulate county highways only as they are under theCommissioner's jurisdiction, and the regulation would have to regulate a local safety interestwhich would not pose a clearly excessive burden on interstate commerce. For example,proposing an ordinance which imposes a weight restriction on bridges and viaducts to ensurestructural integrity and safety. Given the court's ruling and rationale in, Ruiz v. Commissioner ofDept. ofTransp. ofCity ofNew York, 679 F.Supp. 341 (S.D.N.Y.l988), a proposed highwaysafety regulation regulating weight limits on county highways stands a good chance of beingupheld as valid, if challenged. However, a proposed highway safety regulation cannot be passedto limit, or restrict, big/heavy trucks from county highways due to complaints from residentsabout noise, etc .. .

New York State law, which comports with federal law, permits a county superintendentof highways to impose weight restrictions upon county roads. See Troy Sand & Gravel Co. Inc.v. Rensselaer County, 235 A.D. 2d 813 (3rd Dept. 1997) (VTL 1650(a)(4-a) vests a countysuperintendent of highways with the authority to, inter alia, impose weight limit restrictionsupon county roads, the statute requires that such action be accomplished by "order, rule orregulation."). However, imposing a weight limit restriction on a county highway requires asafety interest pertaining to road structures, such as bridges, viaducts, and the roadway itself.

Therefore, the Commissioner has the ability to regulate road traffic on county roads inregards to large/heavy trucks, as long as the regulation(s) do not violate the commerce clause.In order not to violate the commerce clause, a proposed regulation would have to regulate evenhandedly (it cannot discriminate between local and out-of-state interests), the proposedregulation would have to regulate county highways only as they are under the Commissioner'sjurisdiction, and the regulation would have to regulate a local safety interest which would notpose a clearly excessive burden on interstate commerce.

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Law Dept Memorandum 4-12-13 (2)

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